Smith says his office submitted the nondisclosure orders "consistent with the law and department policy" but "did not say who the subpoenas were for"
Jack SmithFormer special counsel, testifying under oath before the Senate Judiciary Committee
Sen. Ted Cruz's questions and former special counsel Jack Smith's answers on nondisclosure orders, at the Senate Judiciary Committee's Sept. 29, 2026 hearing.
Excerpt from 3:16:57 to 3:20:17 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. Ted Cruz's questions and Smith's answers on nondisclosure orders and 2 U.S.C. section 6628, about 3:17:00 to 3:20:15 on the archived video timeline)
Answering Sens. Ted Cruz and Josh Hawley, Smith said his office sought nondisclosure orders because it had strong reason to believe Donald Trump would obstruct the investigation, citing the obstruction alleged in the Florida indictment and threats to witnesses, and that the orders were consistent with the law and department policy. He agreed that his office did not tell the court who the subpoenas were for when it sought the orders.
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.
“We do not have to wait for someone to be injured, for an investigation to be obstructed. We had strong reason to believe that Donald Trump would obstruct our investigation, given the obstruction alleged in the Florida indictment, given the attempts to intimidate witnesses in the election case, given the threats that were later made to witnesses in the election case. ... We sought to follow department policy and the law at all times. ... We submitted these nondisclosure orders consistent with the law and department policy. ... We did not say who the subpoenas were for when we sought a nondisclosure order. That part is correct.”
Original video
Original video
Original video
Original text
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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. Sen. Ted Cruz read language from a nondisclosure order, asked Smith about a federal statute on Senate communication records, and Smith explained why his office sought the orders.
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. Sen. Josh Hawley questioned Smith about the Speech or Debate Clause, the nondisclosure orders and the court, and Smith answered.
Archived copy (opens in a new tab)Sen. Josh Hawley's questions and former special counsel Jack Smith's answers, through Smith's closing response, at the Senate Judiciary Committee's Sept. 29, 2026 hearing.
Excerpt from 4:18:37 to 4:26:27 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. Josh Hawley's questions and Smith's answers, about 4:18:40 to 4:21:10, and Smith's closing response at about 4:26:06 to 4:26:25 on the archived video timeline)
Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Sen. Richard Blumenthal gave Smith part of his time to respond to Sen. Katie Britt's questions, and Smith explained why his office sought the nondisclosure orders.
Archived copy (opens in a new tab)Sen. Richard Blumenthal gives former special counsel Jack Smith time to respond to Sen. Katie Britt, at the Senate Judiciary Committee's Sept. 29, 2026 hearing.
Excerpt from 2:20:09 to 2:21:17 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. Richard Blumenthal's opening questions, in which he gives Smith time to respond to Sen. Katie Britt, about 2:20:12 to 2:21:15 on the archived video timeline)
Original text
About this source
The federal judiciary's administrative office replied to the November 20, 2025 letter. Identical letters went to Rep. Jim Jordan and Sen. Ron Johnson, and Sen. Dick Durbin was copied.
Archived copy (opens in a new tab)Before the quotation
Cruz had asked whether Smith had evidence that 20 percent of the Republicans in the Senate would destroy evidence or intimidate witnesses, citing the reasons stated in a nondisclosure order, and asked whether Smith knew of 2 U.S.C. section 6628. Later, Hawley asked whether Smith's office hid from the court that it was seeking members' records.
After the quotation
Smith said he did not recall discussing section 6628 when the office sought the orders. Later, when Sen. Richard Blumenthal (D-CT) gave him time to respond to questions from Sen. Katie Britt (R-AL), Smith said the orders were not predicated on members of Congress or members of the committee committing acts of obstruction but on concern that Donald Trump and his associates would, and said Trump had suggested that a witness, Gen. Mark Milley, should be put to death. The Administrative Office of the U.S. Courts wrote that the Justice Department changed its manual in September 2024 to require prosecutors to tell the court when an order would delay notice to a member of Congress.
How this statement is classified
The label describes this statement's response within the context above.
Why this label?
Smith defended the nondisclosure orders as consistent with the law and Justice Department policy and as needed because of the risk of obstruction by Trump, while agreeing that his office did not identify the subpoenas' subjects to the court. That defends the orders as proper, so we labeled it Defended or excused.
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The Dispute Index. "Smith says his office submitted the nondisclosure orders "consistent with the law and department policy" but "did not say who the subpoenas were for"". First published: 2026-09-29. Last updated: 2026-09-29. https://disputeindex.com/events/3319-answering-sens-ted-cruz-and-josh-hawley-smith