EXCLUSIVE — Nearly two years before becoming special counsel Jack Smith’s principal deputy prosecutor, J.P. Cooney advocated for repealing the Constitution’s speech or debate clause in a message sent on the eve of the Jan. 6, 2021, Capitol attack.
“I’m an advocate for repealing the clause but absent that, we’re stuck with it and the way it’s been interpreted,” Cooney wrote in the previously undisclosed message sent to another colleague on Jan. 5, 2021, according to a copy obtained by the Washington Examiner ahead of the Senate Judiciary Committee’s hearing interviewing Smith.
Cooney, then a public corruption supervisor in the U.S. Attorney’s Office for the District of Columbia, was discussing the speech or debate clause over a separate matter with Molly Gaston, a fellow prosecutor who also later joined him as Smith’s senior assistant special counsel.
Within weeks of their exchange, Cooney would find himself backing the opening of Operation Rampart Twelve, an investigation into Republican lawmakers that Sen. Chuck Grassley (R-IA) describes as an apparent predecessor to Arctic Frost, the election investigation Smith later inherited under then-Attorney General Merrick Garland.
Opened Jan. 22, 2021, two days after President Joe Biden’s inauguration, Rampart Twelve examined allegations that lawmakers facilitated reconnaissance tours before the protest at the U.S. Capitol turned into chaos. Cooney later became a deputy to Smith, whom Garland assigned in November 2022 to investigate President Donald Trump.
The disclosure concerning Cooney’s views about the speech or debate clause accompanied Grassley’s opening remarks Tuesday at the Senate Judiciary Committee’s hearing with Smith. The speech or debate clause protects legislative acts from executive and judicial interference.
“J.P. Cooney personally concurred with opening the investigation, even though his text messages with a colleague questioned predication,” Grassley said at the start of the hearing on Tuesday.
According to records Grassley released in April, it examined at least four Republican representatives including Lauren Boebert, Paul Gosar, Andy Biggs, and Mo Brooks.
Earlier messages between Cooney and Gaston also suggested the pair hit a dead end when their suppositions about the lawmakers’ activities did not stack up to evidence.
While discussing Capitol footage on Jan. 16, Cooney described a group near Boebert as a family with children.
He wrote: “it’s weird but does not look suspicious.”
Gaston replied: “ok. Well, that’s too bad.”
Investigators nevertheless pursued Boebert and Gosar’s telephone toll records.
Yet the FBI would ultimately close the Rampart Twelve inquiry in January 2022, a whole year later, after failing to substantiate the allegations. By April 4, 2022, Arctic Frost was formally approved by Garland, and was an open FBI investigation on April 13.
Smith will be making his first live-televised appearance before Republican senators on Tuesday, nearly 10 months since he first appeared before the House Judiciary Committee.
GOP Senators, many of whom were targets of Smith’s subpoenas, will likely grill him over Cooney’s stated opposition to a core constitutional protection for lawmakers and how that stacks up to his prior testimony that his team was “the best of the best” prosecutors.
“bottom line: we should not run away from our s/d analysis,” Cooney wrote, using “s/d” as shorthand to reference their speech or debate clause analysis. “we have this right—you have this right.”
Two accompanying pages, previously highlighted by Grassley, show Cooney and Gaston discussing those same congressional legal protections later on Feb. 14, 2021, while Rampart Twelve was underway.
“i’m re reading this statutory language,” Cooney wrote. “this is ridiculous.”
Gaston discussed obtaining cloud content without consulting the senator, then favored litigating access to telephone toll records first.
“i think it would be a bad idea though,” Gaston wrote. “i would rather go through litigation on tolls first.”
“yeah. me too,” Cooney replied.
More than two years later, Gaston consulted John Keller, a senior official in the Justice Department’s Public Integrity Section, about subpoenaing lawmakers’ phone records.
In the May 17, 2023, exchange, Keller flagged potential speech or debate challenges and cited lawmakers’ ability to intervene against subpoenas, according to Grassley’s account of the emails.
Eight days later, Smith’s office issued a May 25 subpoena to Verizon covering phone records associated with Sens. Ted Cruz (R-TX) and Lindsey Graham (R-SC). A nondisclosure order kept the demand secret — preventing the lawmakers, Grassley argues, from exercising the very opportunity to challenge it that Keller had identified.
“In 2023, Cooney, Gaston, Windom and Ray Hulser were given warnings that subpoenaing congressional information could violate the Speech or Debate clause,” Grassley said.
“They didn’t care then, or when they obtained the content of messages from 44 Members, including this senator,” he added.
Grassley said Arctic Frost, which began as an FBI investigation and grew into Smith’s subsequent prosecution, reached hundreds of Republican groups and individuals, seeking their communications with the media and legislative branch. Some demands covered records dating to 2019 and extending into 2023.
Before Smith’s appointment, federal investigators sought toll records from at least four members of Congress.
Smith subsequently sought toll records from 16 lawmakers and subpoenaed 87 Trump White House phones, obtaining communications involving 44 members.
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“In the end, Smith indicted one person — President Trump — but successfully mapped out the Republican apparatus,” Grassley said. “A fact he didn’t put in his report.”
Smith has maintained that his team followed Justice Department policies and based its decisions on the facts and the law, not based on political animus.