Smith says the toll records were "non-content records" and that he "approved those records" after the Public Integrity Section was consulted
Former special counsel, testifying under oath before the Senate Judiciary Committee
“First, with respect to toll records. Toll records are non-content records. They show who a call was to, who a call was from, and the length of that call. My office did secure toll records from third parties, third party telephone companies in the course of our investigation that were records for members of Congress. Before we did that, we consulted with the Public Integrity Section regarding whether those toll records subpoenas were appropriate. I approved those records and those records were materially relevant to our investigation. ... The records that we're talking about are non-content records. The toll records are non-content records that we sought to corroborate evidence we had and also to assist us in questioning witnesses about these events, among other things. ... We sought toll record subpoenas that did not contain the content of calls. I am also aware that we sought White House phones for individuals who are relevant to our investigation, government phones in which they had no expectation of privacy.”
Source and context
Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Durbin asked Smith what involvement his office had with information from members of Congress, and Smith described the toll records his office obtained.
Archived copy (opens in a new tab)Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Schmitt asked whether Smith's office sought the contents of members of Congress's emails or text messages, and Smith answered about toll records and White House phones.
Archived copy (opens in a new tab)Before the quotation
Durbin asked Smith to explain what involvement he had with information from members of Congress, saying there was appropriate concern among members about their phone conversations, text messages and records. Smith answered first on toll records. Later, Schmitt asked whether Smith's office sought the contents of members of Congress's emails or text messages.
After the quotation
Smith went on to say the records corroborated evidence that Donald Trump and his co-conspirators were seeking to exploit the violence of January 6, 2021 to delay the certification, and that they helped show how many phones were used to make calls. Asked how agents identified which phone numbers belonged to which senators, he said he did not have an answer. Asked whether he sought members' contents by other means, he said he could not address every subpoena and pointed to a search warrant for Rep. Scott Perry's phone that he said came before he was special counsel.
How this statement is classified
Responding to: Jack Smith said that the toll records his office obtained from telephone companies were non-content records, that the Public Integrity Section approved the subpoenas, and that the nondisclosure orders were consistent with the law and Justice Department policy at the time.
The label describes this statement’s response within the context above.
Why this label?
Smith said his office obtained members' toll records after consulting the Public Integrity Section, that he approved them, that they were non-content records relevant to the investigation, and that the White House phones were government phones. That defends the collection as proper, so we labeled it Defended or excused.
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Were members of Congress's phone records and text messages properly obtained in the Arctic Frost and Jack Smith investigations?
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More from this case
Read the full case“for all of the outrage of my colleagues over your requesting toll records because Rudy Giuliani and other co-conspirators were calling some of the members of this body ... the Barr Justice Department sought toll records from members of Congress. Not a peep from my colleagues about that ... That apparently was okay. That apparently doesn't violate speech and debate. ... My colleagues talked about the stress on members of having their toll records requested as witnesses, not even targets.”Read statement
“It's been widely reported that you and your team issued some 44 subpoenas related to the tolling records of at least 20 Republican members of Congress, including at least eight U.S. senators, including at least four members of this committee ... it appears the actual reason for the NDOs was to avoid giving those members the opportunity to challenge the subpoenas pursuant to the protection that they enjoyed under the Constitution's speech and debate clause. ... Your team took actions to directly undermine the separation of powers at the heart of the Constitution.”Read statement
“the Department of Justice's own Public Integrity Section, it did give you explicit warnings that going after the phone records of members of the legislative branch carried what they referred to as litigation risks due to these constitutional privileges. ... you never actually told Chief Judge Boasberg that you were targeting 19 members of a coordinate branch of government, the legislative branch. ... There should be an articulated basis for secrecy when you're asking for a gag order. ... in a way that arguably makes what Richard Nixon did in Watergate look like a Sunday picnic.”Read statement