I spend my professional life around fiduciaries. When a trustee breaches duty, when an investment manager crosses a line, there’s a process. Regulators investigate. Courts rule. People lose licenses, pay fines, sometimes do time. That’s not idealism. That’s how the system is supposed to work when someone entrusted with power abuses it.
Compare that to what Sen. Chuck Grassley (R-IA) and Sen. Ron Johnson (R-WI) just disclosed about special counsel Jack Smith’s “Arctic Frost” investigation. According to records released by the two senators, Smith’s team obtained and reviewed text messages from 44 sitting and former members of Congress as part of the Biden Justice Department’s criminal inquiry of President Donald Trump, and it did so by bypassing the Filter Team process built specifically to keep investigators away from privileged material. Republicans and Democrats both got swept up. Grassley and Johnson’s own messages were among them.
Here’s the part that should bother every American, not just the ones who dislike Jack Smith. The Justice Department’s own subpoena to the National Archives sought texts from White House phones tied to Trump, Mark Meadows, Dan Scavino, Kellyanne Conway, Mike Pence, and others covering the period from October 2020 through Jan. 20, 2021. Once the National Archives handed the material over, one of Smith’s senior lawyers had it downloaded within 30 minutes, and other members of the team were reviewing it within an hour, according to the DOJ’s own account to the committee. No wait for the filter review designed to protect Speech or Debate Clause material and attorney-client privilege. Just straight into the file.
Grassley isn’t mincing words. He called the investigation “a runaway train that had no brakes” and said Smith “ran roughshod over the Constitution even after repeated warnings,” adding that he intends to bring Smith before the Judiciary Committee to answer for it. Johnson called it “yet another grotesque example of the Biden administration’s weaponization of the Justice Department.” I believe them, and I’d bet most of the country does too. But here’s my problem: I’ve seen this movie before, and I already know the ending. There’s a hearing. There’s outrage. There’s a news cycle. Then everyone moves on, and the guy who broke the rules keeps his pension, his book deal, and his reputation on cable news.
That’s the pattern, and it’s why the public is running out of patience with the whole accountability racket in Washington. The Russia collusion narrative collapsed under its own weight, and nobody involved in pushing it lost a paycheck over it. The intelligence community signed a letter dismissing the Hunter Biden laptop as Russian disinformation weeks before an election, the story turned out to be true, and the people who signed that letter are still cashing consulting fees. Now we’ve got a Special Counsel’s team caught vacuuming up privileged communications from members of Congress, and the early signal is another round of hearings that will generate headlines and produce nothing.
Federal law actually gives Congress real tools here. Lying to Congress under oath can trigger prosecution under statutes covering false statements and perjury, but only if prosecutors can show the statement was false, material to the matter at hand, made knowingly and willfully, and delivered in a setting the statute actually covers, like sworn testimony or a formal proceeding. That’s a real bar, and it should be. Nobody should go to prison because a committee member didn’t like the tone of an answer. But the flip side is just as true: when the evidence clears that bar, the Justice Department has an obligation to act on it instead of quietly declining to bring charges against people who used to sit two floors up.
JACK SMITH’S LEGACY UNDER SCRUTINY AS QUESTIONS MOUNT OVER TRUMP CASE TACTICS
My career has taught me that compliance doesn’t care about your title. A junior analyst who fudges a disclosure gets terminated the same week a managing partner would for the identical infraction, because the rule protects the client, not the rulebook’s authors. Washington runs the opposite playbook. It’s spent a decade training the public to expect a compliance regime that gets looser the higher up the target sits, and Arctic Frost is just the latest exhibit.
Grassley says Smith has “answering to do.” Fine. Put him under oath, ask the questions, and if the evidence supports a referral, make it. Anything short of that confirms what most Americans already suspect: the rules in this town only bind the people without the power to break them.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.