Coons calls the nondisclosure orders "legal and appropriate" but says "the current bar for granting NDOs may be too low"
U.S. senator from Delaware and member of the Senate Judiciary Committee; sponsor with Sen. Mike Lee of the NDO Fairness Act
“These types of NDO requests are fairly typical in DOJ investigations, and your NDO requests were fully compliant with the Department of Justice policy at the time. ... I believe the government bar, the current bar for granting NDOs may be too low and that government requests for secrecy are too often granted. My NDO Fairness Act with Senator Mike Lee would ensure NDOs are only issued in circumstances requiring secrecy in a way that would better protect all Americans, including members of Congress. ... I'm not suggesting you've done anything wrong. I'm just suggesting that if I have colleagues who were enraged by your legal and appropriate and timely pursuit of NDOs, there's something we can and should do about it.”
Source and context
Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Coons used the end of his time to ask Smith about nondisclosure orders and to describe legislation he sponsors with Sen. Mike Lee.
Archived copy (opens in a new tab)Official statement
About this source
Rep. Scott Fitzgerald's (R-WI) release saying the House passed his NDO Fairness Act unanimously on August 31, 2026. It links the bill to Smith's use of nondisclosure orders for members' phone records.
Before the quotation
Coons turned to nondisclosure orders in the last two minutes of his questioning, after asking Smith about the treatment of prosecutors and agents who worked for him. He asked Smith to walk him through how the office obtained nondisclosure orders for members' toll records.
After the quotation
Coons said the NDO Fairness Act had already passed the House by voice vote. Rep. Scott Fitzgerald (R-WI), the bill's House sponsor, said the House passed it unanimously on August 31, 2026.
How this statement is classified
Case context: Were members of Congress's phone records and text messages properly obtained in the Arctic Frost and Jack Smith investigations?
The label describes this statement’s response within the context above.
Why this label?
Coons said Smith's orders were compliant with Justice Department policy and that he was not suggesting Smith had done anything wrong, while saying the standard for granting such orders is too low and proposing legislation. Because it defends the orders under existing policy and criticizes the policy itself, we labeled it Mixed or conditional.
- Recorded on
- Published here
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