Senators defend need to file lawsuit over Arctic Frost phone records

A new provision allowing senators to sue the Justice Department over secretly subpoenaed phone data has sparked a fierce fight within the Republican Party — with supporters insisting it is a long-overdue check on political overreach and critics warning it smacks of self-interest, even as they offer no clear plan to stop future abuses by the executive branch.

the livelihoodwhich was quietly added to the bill to reopen the government, explicitly gave senators the ability to file a $500,000 lawsuit against the federal government for damages if their phone data was inadvertently subpoenaed. That came in response to subpoenas released by Sen. Chuck Grassley, R-Iowa, that showed former special counsel Jack Smith sought phone records for 10 Republican senators in 2022 as part of the FBI’s sweeping Arctic investigation into President Donald Trump’s alleged efforts to overturn the 2020 election.

This revelation led Republicans to denounce the subpoenas as illegal and intrusive, and to describe the “Arctic Frost” as “worse” than the Watergate scandal.

Critics, including some House GOP members, see the measure as amounting to a means of self-enrichment. Supporters say it is necessary to give senators recourse when executive power oversteps its constitutional limits and accesses congressional communications.

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As is customary for prosecutors when conducting non-public investigations, Smith sought gag orders on his subpoenas, which were granted by a judge, in this case Chief U.S. District Judge James Bosberg.

Boasberg became a controversial figure for his role in Arctic Frost; His refusal in 2021 to sentence former FBI lawyer Kevin Clinesmith to prison after he pleaded guilty to tampering with an email requesting an extension of surveillance warrants against a former Trump adviser; After he issued a temporary restraining order in March preventing Trump from using the 1798 Law of War to deport hundreds of Venezuelan citizens. As part of the latest case, Boasberg is considering whether to hold the Trump administration in contempt.

Attorney Rob Luther, a professor at George Mason University Law School, said senators added protections, including under the Constitution’s speech or discussion clause, that could mean gag orders are illegal. He said senators need to know about the subpoenas so they can object to them.

Requirement to speak or discuss

The speech or debate requirement immunizes members of Congress from facing legal action or prosecution for things they say or do as part of their official legislative work.

Luther said the gag orders, which prevented Verizon and AT&T from telling senators to subpoena their records for one year, were “a violation of their separation of powers, their independence as a subsidiary, and their ability to conduct their business in a free and open forum.”

Smith recently addressed the outrage over the subpoenas, saying the investigative steps he took against members of Congress were “fully appropriate, lawful, and consistent with established Department of Justice policy.” He said he was seeking call tally records, i.e. phone data that does not include the contents of calls and messages, which is routine.

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It still exists law It stipulates that court orders cannot prevent phone companies from notifying senators about the Justice Department requesting their records.

The new provision in the funding bill revised this law to clarify that senators could file civil lawsuits against the Department of Justice as a remedy. The law includes an exception for cases in which lawmakers are the target of an investigation, as in the case of former Democratic Sen. Bob Menendez, who is now serving a prison sentence for corruption.

“These people represent the interests of the people,” Luther said. “They get information from a lot of different sources, and people spying on who is giving them information is frustrating to the democratic process, so I’m not sure any secret investigations into elected officials’ phone records are necessary, at least not under this law.”

Resistance within the party

The measure has received extra scrutiny because some Republican lawmakers in the House have joined Democrats in their anger over the provision.

House Speaker Mike Johnson, Republican of Los Angeles, said Congress intends to vote soon on denying him the funding bill. Other House Republicans complained that they were caught off guard by the provision. They were not opposed to finding another way to deter future unannounced subpoenas, but said giving senators taxpayer-funded compensation is not the answer.

The inclusion of the provision led Rep. Greg Steube, R-Fla., to vote against the broader bill to open the government, telling reporters: “I’m not voting to send half a million dollars to Lindsey Graham.”

Republican Senator Lindsey Graham has embraced the measure even as some of his Senate colleagues distanced themselves from it. He told Fox News Digital on Tuesday that he needs to be able to file a lawsuit, and plans to do so, because Smith obtained his phone data.

Graham said the Arctic freeze “was a blatant violation of the separation of powers and a coordinated effort to try to prevent Donald Trump from making the greatest political comeback in history.”

“The goal is to ensure that the cost of using subpoenas as political weapons is very high in the future,” Graham said. “If not, the government will continue down this path.” “To those who suggest that a government cannot be sued when it violates your rights, I could not disagree more. A government that can violate your rights without accountability is a threat to your freedom.”

The South Carolina Republican said he also plans to introduce legislation to address subpoenas sent by Smith targeting dozens of other people and entities allied with Republicans.

The first Trump administration requested phone records of then-Rep. Eric Swalwell, D-Calif. Adam Schiff, Democrat of California, and dozens of congressional staffers from both parties as part of the investigation into the leak.

Former Inspector General of the Ministry of Justice Michael Horowitz He warned in a report on the leak investigation that lawmakers’ records should only be subpoenaed in limited circumstances because doing so “risks undermining Congress’ ability to monitor the executive branch.”

Using subpoenas to obtain records on members of Congress and aides “may involve separate and important constitutional considerations,” Horowitz wrote, citing “the separation of powers, including the Supreme Court’s recognition of the right of Congress to supervise the executive branch, and the Speech or Debate Clause of the Constitution with respect to members of Congress and employees of Congress.”

“It’s not about the money”

One source familiar said the new provision was the brainchild of Sen. Ted Cruz, Republican of Texas, whose phone records were also subpoenaed. In response to a request for comment, Cruz’s office referred to the senator’s comment Politico That Senate Majority Leader John Thune, R-Oak., added it to the funding bill.

“Leader Thune included this in the bill to provide real strength to the ban on the Department of Justice from targeting senators,” Cruz said.

Sen. Marsha Blackburn, Republican of Tennessee, another target of Smith, said she supports repealing the provision. Blackburn indicated she was more interested in the court finding that Biden’s Justice Department violated an act of Congress than in any monetary award.

“If the Senate votes to repeal the Arctic freeze provision in the government funding bill, I will support efforts to repeal it,” she said in a statement to Fox News Digital. “This fight is not about money, it is about holding the left accountable for the worst use of government as a weapon in our nation’s history.”

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Graham’s warnings about an impending lawsuit suggest that even if this new provision is retroactively stripped from the funding bill, constitutional questions about subpoenas and gag orders could reach the courts and force the judiciary to confront them head-on.

Senators also plan a hearing in December to focus on Boasberg’s role in the subpoenas. Many of Trump’s allies have called for his impeachment, which the House would need to initiate. Impeachment of a federal judge is extremely rare and usually comes in response to bribery or other criminal behavior.

Liz Elkind and Alex Miller contributed to this report.