Left: President Joe Biden speaks from the Roosevelt Room of the White House in Washington, Sunday, July 14, 2024, about the apparent assassination attempt of former President Donald Trump at a campaign rally in Pennsylvania (AP Photo/Susan Walsh). Center: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington (AP Photo/J. Scott Applewhite, File). Right: Special counsel Robert Hur testifies before the House Judiciary Committee on March 12, 2024 (Francis Chung/POLITICO via AP Images).
On the heels of an interview in which he gave a full-throated defense of his thwarted Jan. 6 and Mar-a-Lago probes of President Donald Trump, ex-special counsel Jack Smith told Congress that he used “entirely proper, lawful” means that were no different from methods used during the classified documents investigation of former President Joe Biden.
Starting three weeks ago, pro-Trump media and various lawmakers, perhaps most prominently Sen. Josh Hawley, R-Mo., led a campaign alleging that Smith had tapped the phones of eight U.S. senators and a member of the House as part of his Jan. 6 investigation, casting it as a new revelation and likening “Arctic Frost” to Watergate or worse.
Calls for Smith to testify before Congress ensued; answers were demanded.
At the time, cooler heads noted that there is a difference between “tapping” or wiretapping a phone, which reveals the contents of calls in real time, and subpoenaing “toll records,” metadata after the fact about who was speaking with whom, when, where and for how long — essentially, call logs. That was a distinction that the Yale Law School-educated Hawley — who backed Trump”s stolen 2020 election falsehood and then ran when the Jan. 6 mob descended on the Capitol — didn’t appreciate.
Smith has now responded through his Covington & Burling lawyers in a letter to Sen. Chuck Grassley, R-Iowa, and the Senate Judiciary Committee, of which Hawley is a member.
Though the letter did not name Hawley, it did aim to “correct inaccurate assertions made by [Grassley] and others concerning the issuance of a grand jury subpoena for the toll records of eight Senators and one Member of the House of Representatives,” including Sens. Hawley, Lindsey Graham, R-S.C., Bill Hagerty, R-Tenn., Dan Sullivan, R-Alaska, Tommy Tuberville, R-Ala., Ron Johnson, R-Wis., Cynthia Lummis, R-Wyo., Marsha Blackburn, R-Tenn., and Rep. Mike Kelly, R-Pa.
“A number of people have falsely stated that Mr. Smith ‘tapped’ Senators’ phones, ‘spied’ on their communications, or ‘surveilled’ their conversations,” the letter said. “As you know, toll records merely contain telephonic routing information — collected after the calls have taken place — identifying incoming and outgoing call numbers, the time of the calls, and their duration. Toll records are historical in nature, and do not include the content of calls. Wiretapping, by contrast, involves intercepting the telecommunications in real time, which the Special Counsel’s Office did not do.”
Love true crime? Sign up for our newsletter, The Law&Crime Docket, to get the latest real-life crime stories delivered right to your inbox.
What’s more, the letter said, subpoenaing toll records is “routine and lawful,” citing, by way of example, special counsel Robert Hur’s investigation of Biden’s retention of classified documents.
The portion of the Hur Report on the Joe Biden probe that discusses toll records (Special Counsel’s Office).
“Indeed, Special Counsel Robert Hur subpoenaed toll records in his investigation of President Biden,” Smith’s attorneys said. “During the current Trump administration, the Department of Justice has routinely relied upon subpoenaed toll records in numerous criminal prosecutions.”
Echoing Smith’s recent statement in an interview by former Robert Mueller top lieutenant Andrew Weissmann, the letter noted the former special counsel had to get approval from the DOJ’s Public Integrity Section before “taking this investigative step.”
From there, Smith’s lawyers also threw cold water on the notion that the toll records detail is a new revelation, pointing to Trump’s years-old Jan. 6 indictment and the erstwhile special counsel’s final report on the investigation — all of which is and has been available to the public.
“Paragraph 119 of the August 1, 2023 indictment describes some of the calls that were made to U.S. Senators on January 6, 2021, and footnote 132 of Volume 1 of the Special Counsel Report refers to the use of toll records in the investigation,” the letter continued. “Moreover, the precise records at issue were produced in discovery to President Trump’s personal lawyers, some of whom now serve in senior positions within the Department of Justice.”
That paragraph of the indictment contained details about the timing of calls between unnamed coconspirators and senators, in the context of Trump’s alleged attempts to convince them to “delay the certification” of the election “based on knowingly false claims of election fraud[.]” While the paragraph included the content of voicemails left by someone referred to as Co-Conspirator 1, whom the letter identified as Rudy Giuliani, the content of at least one of those calls was public knowledge two days after Jan. 6:
a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.
b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 placed calls to five United States Senators and one United States Representative.
c. Co-Conspirator 6 attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 to call and attempt to enlist in further delaying the certification.
d. In one of the calls, Co-Conspirator 1 left a voicemail intended for a United States Senator that said, “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.”
e. In another message intended for another United States Senator, Co-Conspirator 1 repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that “illegal immigrants” had voted in substantial numbers in Arizona; and that “Georgia gave you a number in which 65,000 people who were underage voted.” Co-Conspirator 1 also claimed that the Vice President’s actions had been surprising and asked the Senator to “object to every state and kind of spread this out a little bit like a filibuster[.]”
Footnote 132 of Smith’s final report cited the same voicemails along with the parentheticals “Co-Conspirator 1 Toll Records,” “Co-Conspirator 1 Toll Analysis” and “Voicemail from Co-Conspirator 1.”
Footnote 132 of Jack Smith’s Jan. 6 report (Special Counsel’s Office).
