House Judiciary Chairman Jim Jordan has released a sweeping report alleging former Special Counsel Jack Smith's team secretly seized phone records and text messages from more than 40 members of Congress, and then lied about it under oath.
The 57-page report, first detailed by Fox News Digital, lays out what Jordan calls a pattern of constitutional violations by Smith's prosecutors during their investigation of President Donald Trump. Jordan also issued a criminal referral to the Department of Justice seeking prosecution of Smith for alleged false statements to Congress.
The referral targets testimony Smith gave during a December 2025 deposition before the committee. Jordan contends Smith denied his team had accessed the text messages of lawmakers, a claim that newly released DOJ records appear to contradict. Those records, as the New York Post reported, showed Smith's team "directly accessed" text messages from over 40 members of Congress after bypassing a DOJ filter team designed to protect privileged communications.
Jordan's referral went to acting Attorney General Todd Blanche.
The committee report traces the controversy back to the DOJ's "Arctic Frost" investigation, which initially targeted Rep. Scott Perry of Pennsylvania. Investigators sought Jordan's own phone records for the period from August 2020 through January 2021 as part of that probe. But a separate DOJ subpoena, issued on May 1 of an unspecified year, swept far wider, demanding every incoming and outgoing call on Jordan's phone from January 1, 2020, to April 25, 2022. That covers more than two years of the chairman's communications.
The report alleges Smith's team had "only limited, perfunctory discussions" with DOJ's Public Integrity Section, the unit responsible for evaluating the legality of such moves, before issuing the subpoenas. Internal DOJ emails cited in the report tell a damning story. Jennifer Clarke, a deputy chief in the Public Integrity Section, acknowledged a "litigation risk" with the subpoenas but approved them anyway. Her colleague John Keller echoed the concern, calling the risk "minimal", not because the legal argument was strong, but because gag orders attached to the subpoenas meant the targeted lawmakers would likely never find out.
The report puts it bluntly:
"Although PIN cautioned that the subpoenas could be unconstitutional, PIN approved them nonetheless, asserting there was little 'litigation risk' because the gag orders that accompanied the subpoenas would prevent Members from ever discovering the seizures. As a result, Members of Congress were unaware of the Biden-Harris DOJ's spying for more than two years."
That is a remarkable admission to find buried in internal government emails. DOJ lawyers green-lit subpoenas they believed could violate the Constitution's Speech or Debate Clause, the provision that shields members of Congress from executive-branch interference in their legislative work, because they calculated no one would ever know.
The report further alleges that Smith himself "admitted privately" to then-Attorney General Merrick Garland that the targeted lawmakers "likely have a valid Speech or Debate privilege immunizing them from compelled testimony." Garland, the report claims, gave his "blessing" to proceed with the subpoenas anyway. Neither Smith nor Garland has publicly confirmed that characterization.
One of the more striking details in the report involves the DOJ's Office of the Inspector General. The OIG is supposed to operate independently of the Justice Department, investigating waste, fraud, and abuse, often on behalf of Congress. But the committee report alleges Smith's team used an OIG special agent to serve the subpoena for Jordan's phone records, compromising the office's independence.
That agent, Brian Burnett, testified before the committee. Burnett, who has three decades of law enforcement experience, described the arrangement as unlike anything he had encountered:
"A normal investigation would be, I would do the investigation, become familiar with everything, you know, do grand jury subpoenas, do the normal investigative process, follow the normal investigative steps. But, in this case, those steps were given to us by the prosecution team."
In a normal federal investigation, agents develop leads and pursue evidence. Burnett's testimony suggests the opposite happened here, prosecutors handed the investigative steps to the agent, reversing the standard chain of command.
The report also highlights a May 2023 episode involving the phone carrier AT&T. Smith's office sent AT&T a grand jury subpoena requesting phone records for two unnamed members of Congress. But when AT&T questioned the legal basis for seeking lawmakers' records, Smith's team dropped the subpoena entirely. No records were produced.
That retreat raises an obvious question: if the legal footing was solid enough to justify seizing records from more than 40 other lawmakers under gag orders, why did Smith's team fold the moment a private company asked for a legal justification? The report suggests the answer is that Smith's prosecutors knew the constitutional ground was shaky and preferred to operate where no one could challenge them.
When asked about the AT&T subpoena during his congressional testimony, Smith said he did not "have any recollection of that."
The scale of the collection is itself significant. Senate Judiciary Committee Chairman Chuck Grassley released data indicating Smith's team reviewed text messages from 44 senators and representatives, nearly all of them Republican, according to the Washington Examiner. Only two were Democrats. The messages covered the period from October 2020 through January 20, 2021, and included communications between lawmakers and White House employees.
Smith, during his January 22, 2026, testimony before the committee, offered a different framing. He placed responsibility squarely on Trump:
"I think who should be accountable for this is Donald Trump. These records are people, in the case of the Senators, Donald Trump directed his co-conspirators to call these people to further delay the proceedings. He chose to do that. If Donald Trump had chosen to call a number of Democratic Senators, we would have gotten toll records for Democratic Senators. So responsibility for why these records, why we collected them...that lies with Donald Trump."
The argument amounts to this: because Trump's allies contacted Republican lawmakers, the investigation naturally swept up Republican records. But the report contends the constitutional problem isn't which party's members were surveilled, it's that any members were surveilled at all without proper regard for the Speech or Debate Clause.
Peter Koski, Smith's attorney, pushed back in a statement to Fox News Digital. He called the report's premise flawed:
"The premise of this report, which does not challenge Mr. Smith's findings or the validity of the indictments, is based on a mischaracterization of the facts and the law."
Koski added that Smith's team "followed the normal DOJ process when investigating an unprecedented scheme to interfere with the peaceful transfer of power." He insisted politics played no role and that Smith "would have taken the same investigative steps and reached the same charging decisions had these alleged crimes been committed by a Democrat."
That defense faces a structural problem. The DOJ's own internal emails, as cited in the report, show officials acknowledged the constitutional risks and relied on secrecy, not legal soundness, to avoid a court challenge. Calling that "normal DOJ process" is a characterization, not a rebuttal.
Not everyone on the right is convinced Jordan's referral will lead anywhere. National Review's Andrew C. McCarthy called the criminal referral "bogus" and labeled it "partisan lawfare theater," arguing a perjury case cannot be built on what he considers truthful testimony. McCarthy's criticism underscores a divide within conservative legal circles over whether the referral has prosecutorial merit or is primarily a political statement.
Beyond the criminal referral, Jordan's report urges the House to take up the Congressional Records Protection Act, legislation led by Rep. Mike Kelly of Pennsylvania. The bill advanced through the Judiciary Committee but has not yet received a floor vote. Its aim is to establish clearer legal barriers against executive-branch seizure of lawmakers' communications without proper constitutional safeguards.
The report frames the stakes in broad terms, arguing the Speech or Debate Clause "protects not only legislators, but American citizens too" by ensuring their elected representatives can "advocate effectively on their constituents' behalf without the threat of interference or intimidation by the Executive Branch."
Several questions remain unanswered. The DOJ has not publicly responded to the criminal referral. The identities of the two unnamed members of Congress targeted in the AT&T subpoena have not been disclosed. And the full scope of the Arctic Frost investigation, beyond its connection to Rep. Perry, remains unclear.
What is clear is the picture the report paints: a special counsel's office that knew it was on thin constitutional ice, pressed forward under cover of gag orders, used an inspector general's agent as an errand runner, and then, when asked about it under oath, claimed not to remember. Whether that adds up to a prosecutable offense or just a pattern of executive overreach, it is exactly the kind of conduct Congress exists to expose.
