Lee says the Public Integrity Section warned of "litigation risks due to these constitutional privileges"

In his questioning of Smith, Sen. Mike Lee said the Justice Department's Public Integrity Section had warned that going after members' phone records carried litigation risks because of constitutional privileges, and that Smith never told Chief Judge James Boasberg that he was "targeting 19 members of a coordinate branch of government." Smith replied that Boasberg signed the nondisclosure orders, not the subpoenas, and that under department policy his office did not tell the judge whose toll records were sought. Lee said he and Sen. Chris Coons have a bipartisan NDO Fairness Act, that "There should be an articulated basis for secrecy when you're asking for a gag order," and that Smith's conduct "arguably makes what Richard Nixon did in Watergate look like a Sunday picnic."

“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.”