The Biden Justice Department’s pursuit of President Donald Trump is facing fresh scrutiny after newly released materials showed former special counsel Jack Smith’s team accessed text messages to or from 44 members of Congress before a DOJ filter team had completed its privilege review — as well as other revelations that call into question the tactics Smith used to prosecute Trump.
The disclosure, released Tuesday by Senate Judiciary Committee Chairman Chuck Grassley (R-IA), revived Republican scrutiny that Smith’s office disregarded protocol while investigating Trump, and it prompted a rare expression of concern from a Democratic senator.
“I think we need to have more facts. Look into it. Republicans are rightly concerned about the possible breach of norms and improper access to email,” Sen. Richard Blumenthal (D-CT) told Fox News on Wednesday.
The materials show that on Aug. 21, 2023, the National Archives and Records Administration provided Smith prosecutor Thomas Windom access to spreadsheets containing text message content involving lawmakers and White House personnel. Windom downloaded the material, and other members of Smith’s investigative team began downloading it within an hour, according to the materials released by Grassley.
Accompanying the Tuesday release was a Trump DOJ letter to Grassley that said Smith’s office “apparently bypassed” a filter team that was supposed to screen the NARA materials for attorney-client and work-product privilege before prosecutors assigned to the Trump investigation gained access.
That detail is at the center of the most recent controversy. The DOJ’s filter team was supposed to act as a firewall between potentially privileged communications and the prosecutors building the case against Trump. If Smith’s team accessed the messages before screening was completed, his investigators may have seen material that should have been withheld, segregated, or subjected to further legal review before prosecutors could use it, raising additional separation-of-powers concerns because members of Congress had their communications secretly accessed.
The disclosure comes as the DOJ continues to face questions about how the Biden administration’s Arctic Frost investigation — which then-Attorney General Merrick Garland later placed under Smith’s authority — aggressively collected sensitive material while pursuing Trump and his allies.
Smith’s text collections came one month before receipt of phone toll data
The NARA materials are separate from the phone toll data Smith’s team and the FBI obtained during the same 2023 phase of Arctic Frost. Toll data shows who contacted who and when, but does not show the content of messages or phone calls.
On Oct. 6, 2025, Grassley first revealed that the FBI had obtained phone toll data for eight Republican senators and one House member. The data was collected in 2023, and FBI officials in Washington had call logs from those lawmakers’ personal phones by Sept. 27, 2023. The public did not learn of the collection until the October 2025 disclosures.
Subsequent disclosures expanded the known scope of what Smith had done to dig into the private communications of sitting lawmakers. Grassley and Sen. Ron Johnson (R-WI) on Feb. 10 identified 84 Arctic Frost-related subpoenas to telecommunications companies, including 10 seeking toll records connected to at least 20 current or former Republican members of Congress.
The toll data showed such information as the numbers involved, timing, duration, and general location of calls. It did not reveal the content of calls or messages. But the NARA materials revealed this week did, raising questions about whether Smith was totally transparent when he suggested in congressional testimony last year that his team did not probe beyond toll records.
The full scope of Smith’s access, the extent of prosecutors’ review, and whether the text message content was used in Arctic Frost or Smith’s federal election case remain unclear.
Legal questions intensify
Robert Luther III, an associate professor at Antonin Scalia Law School at George Mason University, said the newly disclosed details about Smith’s access to message content present a more serious legal issue than the earlier toll data disclosures.
“When we’re at the point where a special counsel with no oversight is seeing the content of members of Congress’s private exchanges without their knowledge,” Luther told the Washington Examiner, “aside from just the obvious outrageousness of it on its face, that violates the speech or debate clause of the Constitution.”
The speech or debate clause protects lawmakers from executive branch intrusion into legitimate legislative activity, including some communications involving staff, constituents, and official work.
Luther argued in prepared testimony for a Jan. 7 Senate Judiciary Committee subcommittee hearing that 2 U.S.C. § 6628 generally requires telecommunications providers to notify members of Congress when their records are subpoenaed, allowing lawmakers an opportunity to raise legal defenses.
The Biden DOJ did not provide that notice when it sought lawmakers’ phone toll data. Chief U.S. District Judge James Boasberg, an Obama appointee who was assigned to the case, was also not told that subpoenas at issue concerned members of Congress.
“If the judge is saying he didn’t know, he didn’t know because the lawyers didn’t tell him,” Luther said. “What lawyers didn’t tell him? Special counsel’s office.”
Republicans have also alleged that Smith misled Congress when he denied during a Dec. 17 deposition that he had looked at the content of lawmakers’ communications.
“I saw the transcript, and I saw a question” about it, Luther said. “So I don’t know how that’s not applicable.”
A closer look at the transcript may provide an opportunity for Smith to “split hairs,” former DOJ ranking official Jeff Clark said in an interview on The Matt Gaetz Show Wednesday evening.
Smith was asked directly: “Did the toll records that you requested from the senators, did they include the content of the phone calls?” The former special counsel said “no.” When asked whether “the records that you requested, the toll records from the member of Congress, include the content of text messages,” Smith also said “no.”
Clark suggested Smith could argue that technically, the subpoena he was being asked about did not seek message contents, and that investigators had reviewed text messages through different means at a different point in the investigation.
“He’s going to try to say that ‘Look, I subpoenaed information that got me … who called whom on cell phone records, and that that did not get the content of the information from the members of Congress and senators,’” Clark said, but added, “good luck with that defense.”
Luther said Smith’s potential exposure is not limited to whether his testimony meets the legal standard for perjury.
“Even if he didn’t commit perjury, why is he securing the content of senators’ text messages without notice?” Luther said.
Security concerns create a second front
The text message disclosure landed less than a week after another release raised questions about classified security practices inside Smith’s Biden-era special counsel office.
Last week, Grassley released internal DOJ messages in which officials privately described their uncertainty over Smith’s access to classified material, raised questions about the movement of sensitive items, and discussed an apparent security “violation and incident” after a DOJ sensitive compartmented information facility was left unsecured. The incident discussed in the messages occurred on April 18 and April 19, 2024, while Smith’s office was prosecuting Trump over his alleged unlawful retention of classified documents.
Grassley has asked the department to answer by July 22 whether any classified material was compromised, whether evidence in Smith’s prosecution was affected, and whether Trump’s legal team or the court were notified. The DOJ said it was reviewing the concerns and takes the protection of classified information seriously.
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Together, the two disclosures over the past two weeks have sharpened questions about Smith’s legacy and the Biden administration’s decision to give him authority over both of the federal prosecutions over Trump. Grassley has also indicated Smith could soon be brought forth to the Senate for questioning, saying this week “I intend to have him before the Senate Judiciary Committee in the coming months to hold him accountable.”
The controversy has also resonated beyond Capitol Hill. In a non-scientific online National Desk poll with more than 8,700 responses as of Thursday evening, 61% said the DOJ should not be allowed to read lawmakers’ private text messages, while 39% said it should.