House Judiciary Committee Republicans released six transcripts from Jack Smith's special counsel investigation that reveal how prosecutors secretly obtained phone records from more than a dozen Republican members of Congress, while keeping agents and judges in the dark about whose data they were seizing.
The transcripts, made public Tuesday, contain testimony from five members of Smith's prosecutorial team, J.P. Cooney, Molly Gaston, Ray Hulser, Tad Duree, and Thomas Windom, along with Brian Burnett, a retired agent from the Justice Department's Office of Inspector General. Together, the testimony paints a picture of an investigation that operated unlike anything veteran law enforcement officials had seen in decades of federal service, one in which prosecutors called the shots, agents were left uninformed, and constitutional guardrails were treated as obstacles to manage rather than limits to respect.
The released records are part of the broader congressional inquiry into the "Arctic Frost" investigation, the probe into whether President Donald Trump attempted to block the peaceful transfer of power after the 2020 election. Committee Republicans allege investigators improperly subpoenaed the phone records of GOP lawmakers, used nondisclosure orders, gag orders, in plain English, to prevent phone providers from telling those lawmakers what had happened, and withheld key information from the judges who approved the demands.
Brian Burnett spent 15 years in the DOJ inspector general's office and nine years before that as a senior narcotics detective with the Chesterfield County Sheriff's Office near Richmond, Virginia. He retired in 2024 with more than 30 years in law enforcement. His testimony may be the most striking of the six transcripts.
Burnett served the subpoena to Verizon for toll records that turned out to belong to Rep. Jim Jordan of Ohio, the chairman of the Judiciary Committee. But Burnett told congressional investigators he had no idea whose records he was obtaining at the time. The subpoena listed phone numbers, not names.
As Just The News reported, Burnett testified that Smith's prosecutors never informed him the phone data belonged to members of Congress. He said he only learned Jordan's records had been subpoenaed after he retired, from news coverage and a subpoena that surfaced on the internet.
"It was not until I had been retired and this was on the news and there was conversation about Mr. Jordan's toll records being subpoenaed and then there was a subpoena that came up on the internet."
When pressed on whether the number definitively belonged to Jordan, Burnett was candid: "But I do not know, as we sit here today, if that was his number or not." The records he handled were, he said, "[j]ust phone numbers."
Burnett testified that had he known the records belonged to a ranking member of Congress, he would have flagged the issue. According to Just The News, Burnett's inspector general supervisor had previously blocked an earlier attempt by prosecutors to seize Rep. Scott Perry's cell phone, citing legal concerns, a detail that underscores how unusual the operation became once prosecutors took the lead.
Burnett was not the only one who found the investigation's mechanics unusual. An unnamed veteran agent assigned to the separate Jeffrey Clark investigation, Clark was described in the transcripts as the highest-ranking DOJ official willing to explore weaknesses in the 2020 election, called the probe "unique, as far as the over 30 years of law enforcement experience I have."
The normal chain of command ran backward. Prosecutors directed investigative steps that agents would ordinarily handle. Forensics results from subpoenas went back to the prosecutor, not to the agent who served the subpoena. When asked whether he had ever encountered another case in which prosecutors dictated the investigation in that manner, Burnett's answer was blunt:
"Not in my entire 30 years of law enforcement."
That top-down structure meant agents executed legal process without full knowledge of its targets or constitutional implications. For an investigation touching the Speech or Debate Clause, the constitutional provision that protects members of Congress from being questioned about legislative acts, that gap in communication raises serious questions about whether the investigation respected the separation of powers.
The constitutional concerns extend beyond the agents. Jack Smith himself admitted in a separate deposition before the Judiciary Committee that judges who approved the nondisclosure orders were not told the subpoenas targeted Republican lawmakers' phone records. As the Washington Examiner reported, that deposition, conducted December 17 and lasting more than eight hours, revealed Smith's office did not consult the DOJ's Office of Legal Counsel or the Solicitor General before proceeding.
Smith defended the practice. As the New York Post reported, he told lawmakers: "I don't think we identified that, because I don't think that was Department policy at the time." He maintained the records were obtained "in a manner that was consistent with the law and consistent with Department policy."
That defense amounts to saying the rules did not require disclosure, not that disclosure was unnecessary. A judge deciding whether to grant a gag order on a phone company might reasonably want to know that the phone belonged to a sitting member of Congress. Smith's team chose not to provide that information. The New York Post identified approximately a dozen Republican lawmakers whose cellphone metadata was seized, including Kevin McCarthy, Jim Jordan, Lindsey Graham, and Josh Hawley.
The scope went even further. According to Just The News, the Arctic Frost team gathered long-distance phone records for more than a dozen members of Congress and text messages from 44 lawmakers.
Rep. Scott Perry of Pennsylvania was the only lawmaker who had his phone physically seized. Thomas Windom, a member of Smith's team, testified that investigators obtained a location warrant, a court order allowing them to ping a phone to determine its owner's whereabouts, and found Perry on vacation in New Jersey.
Windom framed the seizure as an exercise in restraint, telling the Judiciary Committee:
"In this particular case... the whole team wanted to image the phone and get it back to Congressman Perry as quickly as possible. We were trying real hard to do this in a way that was minimally disruptive, it was as respectful as it could be, and it didn't put Congressman Perry in an awkward spot where we're seizing a phone right out on Independence [Avenue] in front of the Rayburn Building or it's some big hubbub."
The phone was imaged, its contents copied, and returned. Perry was described in the transcripts as a go-between from Trump to Jeffrey Clark. Investigators said his proximity to Trump and his role in finding a legal strategy to keep Trump in office after the 2020 election justified the seizure.
Prosecutor Tad Duree defended the warrant approach over a voluntary request. He testified that seeking evidence voluntarily left open the possibility of refusal, alteration, or deletion:
"If you seek to obtain something voluntarily, people can just choose not to give it to you. That's one obvious thing. But there are myriad opportunities for evidence to be altered, tampered with, deleted, added to. And in this search warrant, same as any others, it was important to me and our team to obtain evidence in a way that it was unadulterated."
Rep. Chip Roy of Texas had his phone records subpoenaed not from him directly but from his phone provider. A nondisclosure order prevented the provider from telling Roy the government had demanded his records. Duree acknowledged the effect plainly: a nondisclosure order "will prohibit a person who holds that phone number from litigating issues surrounding the subpoena."
That is worth pausing on. Federal prosecutors obtained a congressman's phone records, barred his phone company from telling him about it, and in doing so eliminated his ability to challenge the demand in court. The DOJ Public Integrity Section approved the step of seeking Jordan's records in April 2022, knowing the number belonged to the chairman of the committee now investigating the matter, a fact documented on page seven of Duree's transcript.
Prosecutor Ray Hulser testified that Smith was careful about the process. He said Smith wanted a narrow list and written justifications before subpoenaing any member's records:
"Well, I talked with him about it. And, as we got into the May subpoenas, you could see, not only was it [a] narrow list of people, but there were written justifications for it. So he wanted to be very careful if we were going to be getting subpoenas for members."
Careful, perhaps, but not transparent. The written justifications stayed inside the prosecution team. Agents did not see them. Judges did not receive the names. And the lawmakers themselves learned what happened only after the fact, some of them years later.
Duree told the committee his team took the Speech or Debate Clause seriously. "I would say we were hypervigilant and extremely aware of the contours of the Speech or Debate Clause," he testified. "We knew that Speech or Debate was something that we had to navigate. We treated it seriously."
But when pressed on whether the nondisclosure orders and subpoena process might have violated that clause, Duree did not concede a violation. He acknowledged what he called a lack of clarity in the law, describing it as "a common thing, particularly in complex investigations, to run into the corners of the law that aren't fully built out."
That framing, treating constitutional protections for members of Congress as "corners of the law that aren't fully built out", captures the posture of the investigation. Where the law was unclear, Smith's team pressed forward. Where the rules did not explicitly require disclosure, they withheld. Where agents might have raised concerns, prosecutors kept them uninformed.
Smith's criminal cases against Trump were abandoned after Trump won the 2024 presidential election, consistent with longstanding DOJ policy that a sitting president cannot be indicted. But Smith has continued to defend his work. In his December deposition, as AP News reported, Smith told lawmakers his team "developed proof beyond a reasonable doubt" that Trump criminally conspired to overturn the 2020 election results. He also said investigators had "powerful evidence" Trump broke the law by hoarding classified documents at Mar-a-Lago.
Smith insisted his decisions were made "without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election."
Chairman Jordan, meanwhile, issued a criminal referral to the DOJ against Smith, a formal request that the department investigate whether Smith himself broke the law. The transcripts released Tuesday are the latest product of that broader effort.
Several questions remain unanswered. Which specific lawmakers beyond Perry, Roy, and Jordan had their records seized? Did any of them challenge the subpoenas or gag orders in court? What communications were ultimately obtained? And what, if anything, will the DOJ do with Jordan's criminal referral?
The transcripts do not resolve those questions. What they do show is an investigation that operated in secret, kept its own agents in the dark, withheld material facts from judges, and treated the constitutional protections of elected lawmakers as legal gray areas to be managed rather than boundaries to be honored. If that is what "consistent with Department policy" looks like, the policy is the problem.
