(WASHINGTON) — Attorneys representing former special counsel Jack Smith sent a letter to Senate Judiciary Chairman Chuck Grassley Tuesday seeking to correct what they call “inaccurate” claims that Smith wiretapped or spied on Republican lawmakers as part of his investigation into President Trump’s efforts to overturn his 2020 election loss.
“Although you have not reached out to us to discuss this matter, we are compelled to correct inaccurate assertions made by you 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,” attorneys Lanny Breuer and Peter Koski wrote. “Mr. Smith’s actions as Special Counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences.”
The outreach from Smith’s team is the latest in a series of efforts by the former special counsel to correct the record on his parallel investigations into Trump that resulted in two indictments for Trump’s alleged mishandling of classified records after leaving the White House in his first term and his attempt to subvert the 2020 election result.
Trump pleaded not guilty in both cases before both were dropped following Trump’s reelection, due to a long-standing Justice Department policy barring the prosecution of a sitting president.
Both cases have since been cast by senior leadership of Trump’s Justice Department — many of whom previously served as Trump’s personal attorneys — as prime examples of political weaponization of law enforcement.
In the letter from his attorneys, as well as two public appearances on university panels, Smith has disputed that he or his team were ever motivated by politics in their prosecutions of the president.
In their letter Tuesday, Smith’s attorneys sought to refute a narrative stemming from a document released by the FBI on the eve of Attorney General Pam Bondi’s appearance before the Senate Judiciary Committee earlier this month.
The record showed that during Smith’s investigation, his office sought limited phone toll data from eight senators and a member of the House in the days surrounding the Jan. 6 assault on the Capitol.
While such records would not involve the content of any phone calls or messages, multiple Republicans on the committee incorrectly claimed at the hearing the next day that Smith had “tapped” their phones or “spied” on them.
“What was going on here? Who ordered this? Who ordered the tapping of the phones of United States Senators?” Republican Sen. Josh Hawley asked Bondi during the hearing.
“We will be looking at all aspects of this, and I have talked to Director Patel at length about this,” Bondi responded, referring to FBI Director Kash Patel.
Smith’s attorneys, in their letter, stood firmly behind the move to seek the toll records as “entirely proper, lawful, and consistent with established Department of Justice policy,” and further confirmed that Smith received approval to do so from career officials in the Department’s Public Integrity Section.
“The subpoena’s limited temporal range is consistent with a focused effort to confirm or refute reports by multiple news outlets that during and after the January 6 riots at the Capitol, President Trump and his surrogates attempted to call Senators to urge them to delay certification of the 2020 election results,” Breuer and Koski wrote. “In fact, by the time Mr. Smith’s team conducted the toll records analysis, it had been reported that President Trump and Rudy Giuliani tried calling Senators for such a purpose, with one Senator releasing a voicemail from Mr. Giuliani.”
Smith’s attorneys also noted that, during Trump’s first term, the Justice Department “purportedly obtained communications records from two Democratic Members of Congress” as part of an investigation into media leaks.
The letter also criticizes Patel for suggesting in a statement that Smith sought to cover up his office’s use of the toll records, claiming he put them “in a “lockbox in a vault, and then put that vault in a cyber place where no one can see or search these files.”
“It is not clear what cyber place in a vault in a lockbox Director Patel is describing, but Mr. Smith’s use of these records is inconsistent with someone who was trying to conceal them,” the letter said.
Smith’s attorneys point to Smith’s final report on his probe, released in January of this year, which specifically describes some of the calls made to Republican senators during the Jan. 6 attack on the Capitol, and contains as a footnote that refers to the use of toll records in Smith’s investigation.
“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,” Smith’s attorneys added in their letter.
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