Smith says the toll records were "non-content records" and that he "approved those records" after the Public Integrity Section was consulted
Jack SmithFormer special counsel, testifying under oath before the Senate Judiciary Committee
Sen. Dick Durbin's questions and former special counsel Jack Smith's answers on toll records and wiretaps, at the Senate Judiciary Committee's Sept. 29, 2026 hearing.
Excerpt from 1:10:37 to 1:18:17 of the committee's archived hearing video. DI added its logo in the corner.
Video: U.S. Senate Committee on the Judiciary. Public domain (U.S. government work) (opens in a new tab)
Watch the full original video (opens in a new tab) (relevant passage: Sen. Dick Durbin's questions and Jack Smith's answers on toll records and wiretaps, about 1:10:40 to 1:18:15 on the archived video timeline)
Answering Sen. Dick Durbin at the hearing, Smith said toll records show who a call was to, who it was from and how long it lasted, not its content; that his office obtained toll records of members of Congress from telephone companies; that it consulted the Justice Department's Public Integrity Section first; and that he approved the records as materially relevant. Asked about wiretaps, he said his office initiated none. Answering Sen. Eric Schmitt, he said the office sought toll-record subpoenas that did not contain call content and also sought White House phones, which he described as government phones in which the users had no expectation of privacy.
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.
“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.”
Original video
Original video
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Where this statement fits
Were members of Congress's phone records and text messages properly obtained in the Arctic Frost and Jack Smith investigations?
On September 29, 2026, the Senate Judiciary Committee held a hearing titled "Oversight of Jack Smith's Abuse of Authority and the Targeting of Republicans and Related Matters," with former special counsel Jack Smith as its only witness. Committee Chairman Chuck Grassley (R-IA) and other Republicans said that Smith's team, in the FBI's Arctic Frost investigation and its own election case, obtained members of Congress's phone toll records and text messages, used nondisclosure orders to keep members from learning of it, and breached the Speech or Debate Clause. Smith said the toll records were non-content records obtained after he directed his staff to consult the Justice Department's Public Integrity Section, and that the nondisclosure orders were consistent with the law and Justice Department policy at the time. Ranking Member Dick Durbin (D-IL) called the attacks on Smith "petty, personal, and political." The sides and the documents give different counts of the members affected. The dispute is whether the collection of members' phone records and messages was proper.
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)Watch the clip from this source at the top of the page.
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)Sen. Eric Schmitt's question about members' emails and text messages and former special counsel Jack Smith's answer, at the Senate Judiciary Committee's Sept. 29, 2026 hearing.
Excerpt from 1:52:53 to 1:54:11 of the committee's archived hearing video. DI added its logo in the corner.
Video: U.S. Senate Committee on the Judiciary. Public domain (U.S. government work) (opens in a new tab)
Watch the full original video (opens in a new tab) (relevant passage: Sen. Eric Schmitt's question about members' emails and text messages and Smith's answer, about 1:52:56 to 1:54:09 on the archived video timeline)
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
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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The Dispute Index. "Smith says the toll records were "non-content records" and that he "approved those records" after the Public Integrity Section was consulted". First published: 2026-09-29. Last updated: 2026-09-29. https://disputeindex.com/events/3318-answering-sen-dick-durbin-at-the-hearing-smith