Marsha Blackburn sues Jack Smith over her phone records

The records at issue are toll records: details such as numbers called and call duration, not the contents of conversations. That distinction limits what investigators could learn from the records. It does not make a list of someone’s contacts and the timing of their calls trivial.

According to the complaint as described by Roll Call, investigators obtained Blackburn’s records from Verizon. The complaint says AT&T raised the Constitution’s Speech or Debate Clause when investigators subpoenaed that company, and Smith’s team dropped the AT&T subpoena. A court should be able to examine why the two requests took different paths, rather than presume that either company’s response settles the constitutional question.

Blackburn also challenges nondisclosure orders that kept phone providers from alerting lawmakers or people associated with the numbers. Her suit argues that the orders violated a federal restriction on barring notice to lawmakers. Smith has defended the secrecy as necessary to protect the investigation. Whether these particular orders complied with the law is a question for the court, not a conclusion either side can announce for it.

Secrecy needs a limit; public office is not immunity

Smith’s strongest answer is that the records served an actual investigative purpose. He said prosecutors sought toll records to assess communications around Jan. 6, 2021, and consulted the Justice Department’s Public Integrity Section about the subpoenas. At Tuesday’s Senate Judiciary hearing, he defended his investigative decisions and denied wrongdoing.

That case deserves a fair hearing. Investigators examining an attempt to overturn an election cannot be required to ignore relevant contacts simply because a person involved holds office. The Speech or Debate Clause protects Congress’s work, but its application to these toll records is contested. The existence of that protection does not, by itself, establish that every request for a lawmaker’s call records is forbidden.

Yet relevance cannot be the only check. An investigator who obtains records without the subject’s knowledge holds considerable power, even when the records contain no call audio or text. If secrecy is necessary, someone independent of the investigative team should be able to assess its basis and duration. Notice should not be delayed longer than the investigation requires. Those are safeguards Congress should consider for record requests generally, not a privilege reserved for its own members.

Precision matters here, too. Senate Judiciary Committee Republican leaders have raised concerns about messages involving 44 members of Congress obtained through a separate request to the National Archives. Those messages are not the Verizon toll records in Blackburn’s suit. Their allegations about how investigators reviewed the Archives material warrant examination on their own terms, not use as proof that Smith obtained Blackburn’s call contents.

The accountability test for Congress

The strongest argument for Blackburn’s position is that legislators must be able to do their jobs without investigators quietly mapping their communications. That concern deserves more than Smith’s assurance that his team followed the law. The Verizon request, the abandoned AT&T subpoena and the nondisclosure orders leave concrete questions about how investigators handled potential constitutional protections and notice.

The strongest argument against a broad remedy is just as important: an elected official’s privacy claim cannot automatically defeat an investigation into conduct outside protected legislative work. A rule that shields every contact involving a senator would protect power rather than restrain it. Courts should resolve the specific legal claims and the requested relief on a developed record, not on a presumption that either investigators or lawmakers are above scrutiny.

Congress has its own responsibility. The Senate Judiciary Committee should hold a follow-up hearing and seek the subpoenas, nondisclosure orders and relevant Justice Department guidance, with appropriate protections for sensitive material. It should examine the provider requests separately from the National Archives request, then propose clear limits on access, independent review of secrecy and timely notice that protect people’s rights without granting officials special immunity.