Several months before his unexpected death, Republican Sen. Lindsey Graham boasted that he would “definitely” sue former special counsel Jack Smith, which the South Carolinian intended to be “painful” for the prosecutor and his team.
Graham never did bring such a case to court, but one of his colleagues picked up where he left off. Roll Call reported:
Sen. Marsha Blackburn, R-Tenn., sued former special counsel Jack Smith on Wednesday, alleging that his prosecution of the president also unconstitutionally pulled in her records as a member of Congress.
The lawsuit, filed in the U.S. District Court for the Middle District of Tennessee, moves a political fight over the sweep of Smith’s investigation into the courthouse. The complaint alleges that Smith targeted Blackburn for her politics and unconstitutionally obtained her phone records as he probed Donald Trump’s alleged attempt to overturn his loss in the 2020 election.
“Through his Arctic Frost witch hunt that targeted conservatives across America and even the President of the United States, Jack Smith perpetrated one of the worst abuses of government power in our nation’s history,” Blackburn said in a statement announcing the lawsuit.
The Tennessee Republican, who also happens to be running for governor this year, filed the lawsuit one day after the prosecutor appeared before the Senate Judiciary Committee and patiently explained why the GOP’s “Arctic Frost” claims don’t make sense and why this faux controversy isn‘t even close to being “one of the worst abuses of government power in our nation’s history.”
Blackburn, who’s a member of the committee, didn’t show up for the hearing. The New York Times reported that her legal complaint was filled with “political grievances” and “bluster,” which tends to happen when a plaintiff is more interested in scoring cheap points than advancing a serious legal dispute.
The issue came to the fore exactly one year ago this week, when Senate Judiciary Committee Chairman Chuck Grassley, among others, unveiled a brief, unclassified document that he said showed some senators’ cellphone “tolling data” was obtained in 2023 as part of the FBI’s investigation into Donald Trump’s post-defeat schemes.
The day after the claim reached the public, the Iowa Republican declared that the controversy was “worse than Watergate,” while Republican Sen. Josh Hawley of Missouri spent much of the day claiming that his phone had been “tapped” by the FBI. (He was incorrect.)
Not surprisingly, the president joined the partisan parade soon after. “Wow! Jack Smith and the Biden DOJ spied on Republican Senators and a least one Republican Congressman,” he wrote in a social media message. “This is really bad ‘stuff.’ They tried to take down the Republican Party, and got caught!!!”
The truth was, and is, far more anodyne.
The New York Times reported last fall, “The analysis of phone toll records is a common investigative tactic. … Such toll record information does not include the contents of conversations, which would require a court-approved wiretap.”
A related analysis from CNN explained that there was nothing especially surprising about any of this:
We already knew that the phone records of some lawmakers were seized in Smith’s probe, because the Justice Department had to overcome legal hurdles posed by the Constitution’s Speech or Debate Clause. And it’s difficult to understand how Smith ever could have conducted such a probe without obtaining some phone records of lawmakers. That’s because Trump’s pressure on lawmakers was a key part of his efforts to overturn the 2020 election. … It would seem very difficult to piece together a case without understanding who was talking to whom, and when.
MS NOW’s Ken Dilanian emphasized a related point, noting that the former special counsel’s final report, released in early 2025, made note of these same toll records, sparking no backlash.
Plenty of other independent observers drew a similar conclusion. “It actually seems sort of obvious that if you’re investigating a former president of the United States for trying to subvert an election, you’d probe some of contacts he and alleged co-conspirators had with people he was trying to enlist/pressure to overturn the results,” Politico’s Kyle Cheney added.
Nevertheless, several months of partisan hysterics followed, culminating in Blackburn’s lawsuit, which received a presidential endorsement soon after. Watch this space.
This post updates our related earlier coverage.
Steve Benen is a producer for “The Rachel Maddow Show,” the editor of MaddowBlog and an MS NOW political contributor. He’s also the bestselling author of “Ministry of Truth: Democracy, Reality, and the Republicans’ War on the Recent Past.”
