Smith says his office submitted the nondisclosure orders "consistent with the law and department policy" but "did not say who the subpoenas were for"
Former special counsel, testifying under oath before the Senate Judiciary Committee
“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.”
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)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)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)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
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 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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Were members of Congress's phone records and text messages properly obtained in the Arctic Frost and Jack Smith investigations?
Explore the case context, sources and public responses.
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