Shutdown Deal Would Let Senators Sue for Jack Smith Searches (1)

Senators whose phone records were sought by Special Counsel Jack Smith would gain authority to sue for millions in damages under a provision buried in the Senate-advanced deal to reopen the government.

The spending measure, which cleared a Senate procedural hurdle Sunday night, would create a private right of action allowing senators who’ve been searched—without their knowledge—for their communications data to bring civil lawsuits against the US government and potentially individual federal employees.

Each time criminal investigators attempted to access a senator’s data without informing them, the court would be able to award at least $500,000, provided that the lawmaker whose device was searched wasn’t the target of the investigation, according to language tucked into the very end of the 64-page legislative branch bill.

The appropriations package doesn’t specifically mention Jack Smith or the FBI’s operation code-named “Arctic Frost” to obtain phone data of Republican lawmakers who communicated with President Donald Trump around Jan. 6, 2021. But if it were enacted as currently written, it would apply retroactively to Jan. 1, 2022, several months before the FBI started seeking electronic communications of eight Republican senators, obtaining data later analyzed by Smith’s team pursuing charges against Trump.

Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) has been disclosing troves of “Arctic Frost” documents since October, supporting the Trump administration’s claims of partisan weaponization at the Justice Department under President Joe Biden.

Two people familiar with the process said it was headed up by Senate Majority Leader John Thune (R-S.D.).

A person familiar with Judiciary Committee Democrats said that they were surprised by the inclusion of this language and would be consulting with the Appropriations Committee about next steps. Sen. Dick Durbin (D-Ill.), the top Democrat on the Judiciary panel, was among the eight members of his party to join all 52 Republicans in voting to advance the measure that would end the government shutdown.

Attorneys for Smith didn’t respond to a request for comment.

It’s unclear if the provision would enable senators whose cellphone logs were reviewed by Smith’s team to take the former special counsel to court in his personal capacity or if it would only make the government liable for investigators’ actions.

The bill states “Any Senator whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed in violation of this section may bring a civil action against the United States.” But a subsequent section forbids federal employees from asserting absolute or qualified immunity as a defense.