US Senator Marsha Blackburn has sued former special counsel Jack Smith over the collection of her phone records during the federal investigation into Donald Trump and efforts to overturn the results of the 2020 presidential election.
Blackburn, a Republican from Tennessee, filed the lawsuit on Wednesday, September 30, in the US District Court for the Middle District of Tennessee.
The lawsuit alleges that Smith unlawfully obtained her cellphone toll records from Verizon and secured a court order preventing the telecommunications company from notifying her about the request.
Blackburn is suing Smith personally and is seeking $1 in nominal damages. She is also asking the court to declare that Smith's appointment as special counsel was unconstitutional and to order that her phone records be returned or destroyed.
The claims have not been adjudicated, and Smith has previously defended the investigative steps taken by his office as lawful and appropriate.
What phone records were obtained?
The dispute centers on phone toll records collected as part of the investigation known as Arctic Frost.
Toll records generally contain metadata such as which numbers communicated, when calls occurred and how long they lasted. They do not contain the audio of phone conversations or the content of text messages.
During a Senate Judiciary Committee hearing on Tuesday, Smith said investigators obtained toll records from third party companies and consulted the Justice Department's Public Integrity Section before issuing the relevant subpoenas.
Blackburn's lawsuit argues that obtaining her records violated constitutional protections afforded to members of Congress.
According to reporting on the complaint, investigators obtained records connected to Blackburn and other Republican lawmakers who communicated with Trump or his advisers during a four day period in January 2021.
Blackburn challenges Smith's authority
The lawsuit goes beyond the collection of phone records.
Blackburn is also challenging Smith's legal authority to have served as special counsel.
Smith was appointed by then Attorney General Merrick Garland in November 2022 to oversee investigations involving Trump, including the investigation into efforts to overturn the 2020 election and the handling of classified documents.
Blackburn's complaint argues that Smith was not constitutionally appointed and therefore lacked authority to conduct the investigation in the manner that he did.
The legality of Smith's appointment has been disputed in federal court and remains the subject of legal debate. Blackburn is asking the Tennessee federal court to rule on that issue in her case.
Lawsuit comes one day after tense Senate hearing
The timing of the lawsuit is notable.
Blackburn filed the case one day after Smith appeared before the Senate Judiciary Committee for a contentious hearing focused heavily on his investigations of Trump.
Republican senators questioned Smith about his investigative methods, including the acquisition of phone records belonging to lawmakers.
Smith defended his work and rejected allegations that his investigations were politically motivated.
He told senators that the relevant toll records were obtained because investigators considered them necessary to understand communications connected to the events they were investigating.
Democratic senators, meanwhile, defended the legitimacy of investigating the events surrounding the 2020 election and the January 6 attack on the US Capitol.
The hearing highlighted the continuing political and legal divisions surrounding Smith's investigations.
What was Arctic Frost?
Arctic Frost was the name associated with the federal investigation examining efforts to interfere with the transfer of presidential power following the 2020 election.
The investigation ultimately became part of Smith's prosecution of Trump over alleged efforts to overturn the election result.
Trump denied wrongdoing.
Smith brought federal charges against Trump in 2023. The case never reached trial, and Smith later moved to dismiss the prosecution after Trump returned to the presidency, citing Justice Department policy concerning the prosecution of a sitting president.
The investigation also examined communications involving people around Trump during the period surrounding January 6, 2021.
That broader effort is now at the center of disputes over how investigators obtained communications data involving members of Congress.
Why Blackburn says her rights were violated
One of the central arguments in Blackburn's lawsuit involves the Constitution's Speech or Debate Clause.
The provision gives members of Congress protections relating to their legislative activities.
Blackburn argues that secretly obtaining her phone records interfered with those constitutional protections.
Her lawsuit also challenges the nondisclosure order that prevented Verizon from informing her about the subpoena while the investigation was underway.
Whether those arguments succeed will ultimately depend on how the federal court interprets the scope of congressional protections and the investigative authority exercised by Smith's office.
Smith has defended the subpoenas
Smith has presented a different account of the investigation.
During his September 29 Senate testimony, he said his office sought toll records rather than the content of lawmakers' calls.
Smith said prosecutors consulted the Justice Department's Public Integrity Section before obtaining the records and were advised that the subpoenas were appropriate.
He also defended his broader investigation, telling senators that his decisions were based on evidence rather than political affiliation.
Republican lawmakers strongly disputed that characterization during the hearing, while Democratic members defended Smith and challenged Republican accusations against him.
Those disagreements are politically significant, but Blackburn's new lawsuit moves part of the dispute into federal court, where the competing legal arguments can be tested.
What happens next?
Blackburn's complaint begins what could become another significant legal battle over the investigations surrounding the 2020 election.
The court will have to consider her allegations concerning the collection of her phone records, the nondisclosure order and Smith's authority as special counsel.
Smith will also have an opportunity to respond to the allegations.
No court has ruled in Blackburn's favor on the claims contained in this new lawsuit, and the filing itself does not establish that Smith acted unlawfully.
The case nevertheless creates a new legal front in a dispute that has continued long after Smith's investigations of Trump formally ended.
