Lee says the Public Integrity Section warned of "litigation risks due to these constitutional privileges"
U.S. senator from Utah and member of the Senate Judiciary Committee; co-sponsor with Sen. Chris Coons of the NDO Fairness Act
“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.”
Source and context
Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Sen. Mike Lee asked Smith about the Public Integrity Section's warnings, the nondisclosure orders and what Smith's office told Chief Judge James Boasberg, and described the NDO Fairness Act.
Archived copy (opens in a new tab)Before the quotation
The House Judiciary Committee's Republican staff report lists Lee among the members whose toll records were subpoenaed. Lee first asked Smith whether he sought only toll records for members of Congress. Smith answered that the toll-record subpoenas were what he had discussed, that a search warrant was executed on Rep. Scott Perry's phone before he became special counsel, and that his office requested White House phone records from the National Archives. Lee then asked about preservation requests sent to Apple.
After the quotation
Asked whether toll records include geolocation data, Smith said his understanding of what was most relevant to his office was "the to and from and duration." Lee then cited Supreme Court Fourth Amendment precedents on geolocation data and ended his time. Chairman Grassley then entered into the record preservation requests to Apple and Google for members' records.
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. Lee said the Public Integrity Section had warned of litigation risks, that Smith "never actually told Chief Judge Boasberg that you were targeting 19 members of a coordinate branch of government," and that the conduct "arguably makes what Richard Nixon did in Watergate look like a Sunday picnic." 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
“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.”Read statement