Kennedy tells Smith he "had to know it violated the speech and debate clause"
U.S. senator from Louisiana and member of the Senate Judiciary Committee
“Well, then you had to know it violated the speech and debate clause. In fact, when you went to Judge Boasberg, you didn't even tell him you were seeking the phone records of members of Congress, did you? Because you knew he wouldn't agree. He would say, hey, counselor, anybody who knows a law book from a J. Crew catalog knows that this violates the Constitution.”
Source and context
Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Sen. John Kennedy asked Smith whether he sought senators' phone records, whether he knew that violated the Speech or Debate Clause, and whether he told the judge the records were members'.
Archived copy (opens in a new tab)Before the quotation
Kennedy's questions began with Smith's background and whether Smith had sought the special counsel post. Kennedy then asked whether Smith sought the phone records of senators, and Smith answered, "We sought the toll records, non-content records." Asked whether he knew that violated the Speech or Debate Clause, Smith answered, "That is incorrect. We sought to comply with that."
After the quotation
Smith answered, "We sought nondisclosure orders from the court," and, pressed on whether he told the judge, "In seeking nondisclosure orders, we did not disclose." Kennedy then told Smith, "You make me want to throw up in my mouth." Durbin objected that the witness should be allowed to complete a sentence, and Kennedy asked the chair to instruct Smith not to filibuster.
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?
The case asks whether the collection of members' phone records and messages was proper. Kennedy told Smith he had to know that seeking the records violated the Speech or Debate Clause and suggested Smith withheld from the judge that the records were members'. That rejects the collection as improper, so we labeled it Condemned.
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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