This week, former Special Counsel Jack Smith testifies in the House. He’ll presumably do an effective job. It can be hard to land blows in House hearings and he’s supremely confident of the rightness of his cause. Having read his transcribed interview (TI), though, I think House Republicans would do well to probe him on the question of member toll records.
By way of background, it emerged in the fall that Smith had sought member toll records for numerous senators and staff as well as House members, including then-Speaker Kevin McCarthy (R., Calif.). Toll records are a form of telephonic metadata held by phone carriers. Smith also sought judicial non-disclosure orders (NDOs) on the subpoenas to prevent providers from telling either the members or congressional administration that the toll records had been sought and provided. A federal statute, 2 U.S.C. § 6628, prohibits the use of NDOs on subpoenas involving Senate devices. According to information obtained by Senate Judiciary Committee Chairman Chuck Grassley (R., Iowa), Verizon complied with the requests while AT&T did not. The Smith team apparently dropped the issue with regard to AT&T when the company refused to comply.
Affected members went ballistic and Congress went so far as to amend § 6628 to give it teeth, including a private right of action. (This proved controversial, although I think it was justified.)
Once you, as a prosecutor, are seeking information from members of Congress via a compulsory process, it gets complicated fast. As it should: Members of Congress are protected in their speech or debate by the Constitution, as well as by distinct statutory provisions. Speech or debate is an area that has been litigated in the D.C. Circuit, most notably in the William Jefferson case and in U.S. v. Rayburn House Office Building Room 2113. There the court held that legislative materials were protected from seizure even in the criminal investigation of a legislator.
In his TI, Smith admits that he was familiar with those speech or debate cases and the issue generally, but he had concluded that it just didn’t apply to toll records.
Q: I mean, the House and DOJ has [sic] a big disagreement on this. I mean, the William Jefferson case. Are you familiar with the Rayburn House Office Building case?
A: I am.
Q: Okay. And so when issuing grand jury subpoenas for toll records, do you consider yourself bound by that opinion?
A: Yes, but I would say that opinion does not — that is a case where there was a search warrant of a Congressman’s office. That Congressman was a target of the investigation.
Q: Right.
A: The — the search warrant wasn’t seeking noncontent toll records. It was seeking the actual records of legislative material of the Congressman to be used against that Congressman.
Q: But, I mean, the Court in the Rayburn case concluded that there is a documentary nondisclosure privilege, not just a prohibition on the evidentiary use of that material against Members.
A: I’m not debating the Rayburn case exists. What I’m saying is in the Supreme Court or the D.C. Circuit, there is no case that says noncontent — Rayburn dealt with content — noncontent records not secured from a Member, but secured from a third party are subject to the Speech or Debate Clause.
You see, Jefferson and Rayburn involved content, while Smith simply wanted metadata. Totally different. No court says “noncontent” searches “secured from a third party” are protected by speech or debate, per Smith.
Never mind that the Speech or Debate Clause doesn’t import those kinds of content-noncontent or custodian distinctions found in Fourth Amendment jurisprudence. Indeed, the purpose of the clause is to keep members free from coercion in their official duties, and phone metadata — that is, with whom they are talking, for how long, and when — is closely linked to those official duties.
Smith’s lawyerly distinctions here aside, he also apparently consulted with the Public Integrity Section (PIN) at DOJ. While he debated in his TI just how thorough PIN’s analysis was (“Certainly, there could be more analysis. But, again, I don’t know if there was an additional conversation that — it seemed — I’m drawing an inference.”), he was presented with a document whereby PIN said to go ahead and seek the toll records because the litigation risk was low. The majority at his TI described the analysis as “a cursory litigation risk assessment.”
After all, PIN apparently concluded that, if Smith got an NDO, members wouldn’t even know about the subpoena, so what’s the worry? House Judiciary Committee Chairman Jim Jordan (R., Ohio) read that part of their analysis: “Low likelihood that any of the Members listed below would be charged, and the litigation risk would be minimal, not to mention they’re not going to know.” Jordan went on to summarize the position, “We’re not going to charge anyone. We’re not going to get sued. They’re not going to know. Who cares about Speech or Debate? That’s what the assessment looks like to me.” The most Smith could muster in response was “Chairman, I would disagree with that characterization of it.”
Smith’s oath was to uphold the Constitution. Is upholding the Constitution the same as simply avoiding a court saying that he violated the Constitution? Admittedly, there are two ways of looking at constitutional behavior by the political branches of government: the judicialist perspective and the departmentalist perspective. The judicialist says that his job is to do what he wants and a court will tell him if it’s wrong. The departmentalist says that he must base his own actions on his own best reading of the Constitution. Take the 2018 debate over the proposed “Special Counsel Independence and Integrity Act” to prevent Trump from firing Robert Muller: Its Republican proponents said that the courts would figure out if it was or wasn’t constitutional, so Congress should just pass it; its opponents said that they had an obligation to prevent its passage because they considered it unconstitutional.
Smith clearly takes the judicialist view. That may be understandable from the perspective of a hard-charging prosecutor who always gets his man, but is that really the responsible course of action for a senior officer of the United States in such a high-profile case? Either Smith decided to ignore the Constitution or he had the judgment of Captain Ahab chasing his whale. Neither commends him.
Making things worse was the statutory protection of the Senate data. Even if Smith was right about the content-metadata distinction in core speech or debate protections, 2 U.S.C. § 6628 clearly applied to all data, which is defined to include metadata specifically.
In his TI Smith admits that he may have been aware of this restriction, but he concluded that it applied to the providers and not to him or the judge. He explained,
As I sit here today, I don’t recall specifically discussing that statute. I will say that my reading of that statute as it existed at that time is that that was a statute directed at providers. It actually envisions that a provider might actually get an NDO application. And the provider, who has the best information about whose phone line is whose, that they’re best situated to make — to make these judgments.
Therefore he was free to seek the data and to not inform the judge from whom he wanted the NDOs that these records belonged to a class of people for whom NDOs were unlawful. That he wanted Senate metadata was someone else’s problem.
This is lawyerly to the point of being Jesuitical and also contradicts the natural reading of the law as it stood at the time. The law said,
Notwithstanding any other provision of law or rule of civil or criminal procedure … any provider for a Senate office … shall not be barred, through operation of any court order or any statutory provision, from notifying the Senate office of any legal process seeking disclosure of Senate data ….
The natural reading could just as easily be that one is not to seek the court order itself because that would bar the provider from informing the Senate office.
All the more damning is the fact that AT&T, when served with the subpoena and NDO, said that it wouldn’t turn over the information for Senator Ted Cruz (R., Texas) and a still-unidentified subject. What did Smith’s team do? They said that was fine. Inspector Javert suddenly let someone go.
The reasonable inference is that the Smith team knew the request was unlawful and AT&T would prevail in court if they pressed it. And yet at the same time, they happily hoovered up the illegal toll data from Verizon when it complied.
It’s one thing to be a constitutional judicialist — I disagree with the approach, but it’s a pretty common view. But there’s no such thing as a statutory judicialist. That’s called ignoring the law — and hoping to get away with it. Here the evidence seems to suggest that Smith’s team was happy to work with Verizon on the issue AT&T told him was illegal. In other words, his team was fine violating the statute when they thought they could get away with it. I wonder what Smith’s Mar-a-Lago indictment has to say about that approach to legal compliance.
This bleak picture only gets worse when you consider it in the context of the DOJ. Here we have an action that arguably violates the Constitution and certainly violates a statute, and which is likely to prompt just the sort of interbranch conflict we’re seeing today. It’s not at all clear whether or not Smith raised it with then-Deputy Attorney General Lisa Monaco or then-Attorney General Merrick Garland. The Office of Legal Counsel? The Solicitor General? He gives no definitive answers in his TI for whom he told what, when.
So what do we know going into Smith’s hearing? We know he sought toll records on House members and senators under NDOs. We know he was aware of the constitutional precedent and distinguished it away. We know he checked with PIN who told him the litigation risk was low. We know he decided not to tell the judges what information he was seeking because he concluded it was up to the providers to see the law was followed, not up to the judges — or the DOJ. We know that he acceded to AT&T when it said it wouldn’t provide the information because it was illegal. We have no idea how much, if any, of this he ran by the DOJ’s Senate-confirmed leadership.
Early in his TI Smith says, “I was taught as a young prosecutor … to do the right thing, the right way, for the right reasons.” Does that include potentially violating the constitution on the theory that no one will know about it anyway? Does that include evading a known statutory prohibition because it’s someone else’s problem? Does that include doing it all without necessarily informing your superiors who will be on the political hook for it?
Talented though Smith may be, the House has a lot to work with here.