Sen. Marsha Blackburn sued former special counsel Jack Smith over secret phone-record collection and says he should face criminal prosecution for what she calls an unlawful probe.
Tennessee Sen. Marsha Blackburn filed a civil lawsuit against Jack Smith, arguing he was never lawfully a special counsel and violated her rights as a member of Congress by secretly collecting her phone records. Hours before the filing, she told the John Solomon Reports podcast she also wants him prosecuted.
“I think that it would be a good thing for him to face prosecution,” Blackburn said. She added that he should have to reveal who worked with him and return the records to the people she says he harmed.
The suit, brought with the New Civil Liberties Alliance, seeks only $1 in damages. It asks a court to hold Smith liable in his personal capacity on the theory that a federal judge already found former Attorney General Merrick Garland never lawfully appointed him. Blackburn is a sitting senator, a Senate Judiciary Committee member, and a GOP candidate for governor.
NCLA President Mark Chenoweth, who filed the case, framed the core claim around the Constitution’s Appointments Clause. Principal officers, he argued, must be appointed by the president and confirmed by the Senate. Even for an inferior officer, Congress still has to create the post.
Chenoweth said neither step happened for Smith.
"The appointments clause of the Constitution requires for principal officers, which we argue that Jack Smith was, that they have to be appointed by the president and confirmed by the Senate. Neither one of those things happen, even if he was an inferior officer, John, Congress still, under the appointments clause, has to create the position for him to fill. And Congress never created the special counsel position. This is something Merrick Garland came up with on his own. So this whole investigation, this whole Arctic Frost investigation, to the extent that Jack Smith was involved, was polluted by this unlawful, unconstitutional appointment,"
Chenoweth said on the podcast. The complaint does not claim criminality. That question, the lawyer said, is left for others, including the Justice Department.
Blackburn put the same point in sharper terms, calling Smith someone “pretending to be a special counsel or posing as a federal prosecutor.”
NCLA said that while purporting to act as special counsel, Smith and others in the DOJ, FBI, Special Counsel’s office, and Public Integrity Section agreed to subpoena Blackburn’s cell phone toll records. Those records would show whom she spoke with, when, and for how long. Verizon was her carrier. A court nondisclosure order required the company to keep the subpoena secret.
Chenoweth went further on how the subpoena was obtained. He said Smith spoke with the Public Integrity Section, which flagged a potential Speech or Debate Clause problem. They then withheld the material fact of Blackburn’s identity from the federal district judge in Washington, D.C., who issued the subpoena.
"Smith talked to the Public Integrity Section at the Department of Justice. They alerted him to the potential speech and debate clause issue, and they decided to withhold that material fact of Senator Blackburn's identity from the federal district judge. So when they went to get the subpoena from the federal district judge in D.C., they did not tell him that they were seeking the records of a sitting U.S. senator."
That is the intentionality evidence the suit aims to put before a court, Chenoweth said.
The lawsuit landed as Senate Judiciary Committee Republicans pressed Smith over an evidence-collection effort they labeled Arctic Frost. On Tuesday, the panel laid out allegations that the former special counsel ran a political espionage campaign dressed up as a criminal investigation. Committee materials called it “worse than Watergate.” Blackburn did not attend the interrogation.
Republicans on the panel accused Smith of using prosecution powers to collect donor checks, journalist contacts, and text and phone data from members of Congress. Hundreds of Trump supporters, GOP lawmakers, and conservatives were swept up, the committee alleged, even though they were never accused of or charged with wrongdoing.
Blackburn described the scope in her own words.
"Instead of looking into issues that would have been in his jurisdiction, he was getting telephone records. He was getting emails. We found out today nearly 5,000 individuals sent checks to President Donald Trump. [Smith] got copies of those checks,"
she said. She added that 102 Tennesseans who wrote checks to the president’s campaign had their copies pulled, with files opened on those donors.
"He was on a witch hunt, and he was determined to find out who was talking to the president, what they were saying."
House Judiciary Chairman Jim Jordan, R-Ohio, had already accused Smith in July of giving “willfully and intentionally false statements” in congressional testimony the prior December. Smith has denied wrongdoing. He defended the investigation as lawful and nonpartisan and said the strongest witnesses against the targets were Republicans. He also said he would pursue a prosecution against Trump again because he believed the evidence supported it.
"I personally find it very hard to understand how our investigation can be viewed as partisan when the strongest witnesses, the people who were the difference between the rule of law standing and not in our case, were Republicans,"
Smith said.
Blackburn’s civil case is not a criminal filing. She still wants prosecutors to act. She said it would be good for Smith to face charges, identify everyone involved, and return the records.
Retired FBI Special Agent Jonathan Gilliam told Just the News he would never have used some of the tactics described. He argued prosecutors could build a criminal case around what he called a contrived effort to go after Trump.
"We can show that the multiple things that they did were contrived, were made up, or falsified, and that they were done for a reason to go after President Trump to further their ideology, their politics, or their criminal enterprise,"
Gilliam said. He added that if FBI Director Kash Patel examined the matter, “the cards would fall.”
Those are allegations, not court findings. No arrest or criminal charge against Smith is reported in the available record. The suit itself leaves criminality for the Justice Department and others to decide. Immunity questions are not addressed in the complaint.
What is on the table is concrete: a sitting senator’s toll records obtained under a secrecy order, an Appointments Clause challenge to Smith’s authority, a $1 personal-capacity damages demand, and open calls from Blackburn and others for criminal review. Taxpayers and lawful political donors got pulled into a dragnet that Senate Republicans say never should have existed. When federal power is used that way, civil suits and hard questions are the bare minimum.
