Newly released emails show Jack Smith’s special counsel team repeatedly flagged privileged materials that reached investigators, undercutting his recent Senate claim that filter protocols were followed.
Internal messages from the former special counsel’s office describe potentially privileged documents landing with frontline investigators and FBI agents, then scrambling to search systems and purge the files after the fact.
Just the News reported that The Oversight Project obtained the emails under federal open records laws. The records show Smith’s office acknowledging, on at least six occasions between December 2022 and August 2023, that suspected attorney-client privileged material or other sensitive communications had slipped through filter-team reviews.
That paper trail collides with what Smith told the Senate Judiciary Committee only weeks before the report. The contrast is not subtle. It is written in the team’s own words.
Sen. Katie Britt, R-Ala., put the question to him directly.
"Mr. Smith, it's your testimony to this committee that you observed the proper investigative protocols at all times, including the filter team?"
Smith answered:
"Yes, we sought to do things consistent with the law and department policy."
Department of Justice rules exist for a reason. When prosecutors seize material likely to include privileged communications, a filter team of agents and lawyers not involved in the underlying investigation is supposed to pull out protected material before the case team sees it. That wall is meant to protect constitutional rights and the attorney-client relationship.
The emails say the wall did not hold as cleanly as the testimony suggested.
On Aug. 3, 2023, a records officer for the Smith Special Counsel Office wrote the FBI asking for a search-and-remove operation. The message treated the problem as already live.
"The Smith Special Counsel Office requests the FBI search its Outlook server and/or eVault for the following potentially privileged document which may have been inadvertently sent to members of the investigative team," the officer wrote, directing a hunt for a file titled SM_MAL-0021793 across listed UNET and FBINET Outlook accounts. "If found, please notify us of the locations and take steps to purge the document from those locations," the email continued. "The SCO is working to resolve the issue with this sensitive document quickly and we appreciate your help in this matter."
Five days later, another official addressed a separate mess tied to improperly forwarded attorney-communications evidence. The official said he would not read “Brett’s notes,” which he had not previously seen, and weighed whether to delete the email or keep it for open-records purposes.
“I do not intend to read Brett's notes, which I have not previously seen. I would delete the email, but for FOIA purposes perhaps I shouldn't,” the official wrote on Aug. 8, 2023.
Those are not the notes of a process that never failed. They are cleanup notes.
The problem did not begin in August. On May 24, 2023, a lawyer on the team spotted a privileged document on Everlaw, the review platform, and asked for it to be taken down.
“Hi, I just came across [redacted description] on Everlaw. It's a privileged doc. Can we have it removed?” the lawyer wrote.
In December 2022, another lawyer warned that a production had to be redone because protected material had already come through.
“I wanted to give you a heads up that counsel... will be redoing the third production. The version we received contains some potentially privileged material,” the lawyer wrote.
Across that stretch from late 2022 into summer 2023, the Oversight Project materials show at least six internal acknowledgments of the same core failure: suspected privileged or sensitive communications reaching people who were not supposed to have them yet.
Marshall Yates, strategic counsel for The Oversight Project and a former chief of the FBI’s congressional affairs office, said the emails show investigators and prosecutors reviewing material before a proper filter process, the opposite of what Smith described under oath.
"Jack Smith's abuse of power knew no limits, and what he testified to the Senate Judiciary Committee was that they followed filter team protocols," Yates said on the John Solomon Reports podcast. "He was very clear in that testimony. And what we found is a pattern... where prosecutors and investigators are seeing filtered information, non-filtered information that they're reviewing before it goes to a filter team. And that is a violation of the protocols that Jack Smith testified that they followed."
Yates pressed the point further: the admissions appear in writing, repeatedly. Team members flagged the problem. They admitted seeing the material. In some instances, they admitted opening and reviewing it. “That is just not allowed,” he said, counting at least six distinct episodes in a matter of months.
Smith has publicly denied wrongdoing and said he would pursue President Donald Trump again if given the chance. The emails do not answer every legal question a court might ask. They do show his own office treating privileged exposure as a recurring operational headache while he later told senators the protocols were observed.
The privilege fight is not limited to filter-team emails. House Judiciary Committee Chairman Jim Jordan in July referred Smith to the Justice Department for criminal prosecution, arguing Smith made willfully false statements in a December deposition with the panel.
Jordan’s letter to Attorney General Todd Blanche focused on members’ communications. Smith testified in that deposition that he did not receive the content of members’ text messages. Documents DOJ later produced to the committee told a different story.
"The DOJ produced documents to the Committee revealing that Mr. Smith’s team obtained text messages of 44 Members of Congress, implicating both Republicans and Democrats in both chambers of Congress, that may have included privileged content," Jordan wrote. "This information calls into question the completeness and accuracy of statements that Mr. Smith made under oath to the Committee regarding his team’s access to the content of Members’ text messages."
Sen. Marsha Blackburn, R-Tenn., has sued Smith personally over the collection of her phone records, alleging the sweep violated her civil liberties as a member of Congress, including Speech or Debate Clause protections.
Separate reporting from the same outlet earlier this month described Smith’s team using a pen register and trap-and-trace device to monitor incoming and outgoing calls to Trump campaign chief Susie Wiles, including logging calls involving Trump’s defense lawyers. Privilege fights, in other words, have followed this investigation from multiple directions.
No court finding quoted in the newly released package declares a final constitutional violation on each of the six email episodes. The identities of every client tied to every flagged document are not fully laid out. “Brett,” whose notes triggered the August FOIA debate, is not further identified in the published excerpts.
What is on the page is harder for Smith to dismiss. His office asked the FBI to purge a potentially privileged file that may already have reached the investigative team. Lawyers flagged privileged material on the review platform and in productions. Officials discussed not reading attorney-related notes that had been forwarded in error. Yates and congressional Republicans say that pattern cannot be squared with blanket assurances about filter-team discipline.
Filter teams exist so that case agents do not get a free look at protected legal strategy. When the safety net fails, the damage is not abstract. Defense counsel lose a shield the system promised them. Targets lose confidence that the government is playing by its own manual. And sworn testimony about “proper investigative protocols” becomes a claim the paperwork has to survive.
Smith’s emails keep pointing to the same operational truth: privileged material did not always stay behind the filter. His Senate answer said the rules were honored. The cleanup requests say the breaches kept happening anyway.
When a special counsel’s own inbox documents the slip-ups, senators and voters are entitled to judge the testimony against the paper, not the press conference.
