Britt says it "appears the actual reason for the NDOs was to avoid giving those members the opportunity to challenge the subpoenas"
U.S. senator from Alabama and member of the Senate Judiciary Committee
“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.”
Source and context
Original video
About this source
Senate Judiciary Committee's archived video of the September 29, 2026 hearing. Sen. Katie Britt gave figures for the subpoenas, asked whether Smith believed senators would have tampered with evidence, and described what she said was the actual reason for the nondisclosure orders.
Archived copy (opens in a new tab)Before the quotation
Britt began by asking Smith about the FBI's opening of Arctic Frost in April 2022 and about FBI agent Timothy Thibault, whom she said the Office of Special Counsel found had violated the Hatch Act. She then turned to the subpoenas for members' toll records and to the nondisclosure orders that came with them.
After the quotation
Sen. Richard Blumenthal (D-CT) gave Smith part of his own time to respond to Britt. Smith said the nondisclosure orders "were not predicated on the idea that members of Congress or members of this committee would commit acts of obstruction," but on "a real concern that Donald Trump and his associates would do that because they had done it and they did it again."
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. Britt said the released records suggest the nondisclosure orders were meant to keep members from challenging the subpoenas under the Speech or Debate Clause, and that the team's actions undermined the separation of powers. That rejects the subpoenas and the nondisclosure orders 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
“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
“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