Jack Smith Testifies Before Senate Judiciary Over Congress Phone Records and Rushed Software Buy

Jack Smith sat before the Senate Judiciary Committee Tuesday morning at a hearing Chairman Chuck Grassley, R-Iowa, titled "Oversight of Jack Smith's Abuse of Authority and the Targeting of Republicans and Related Matters." The title alone tells you where Grassley stands. Smith, who spent two years building federal criminal cases against Donald Trump before dismissing both after Trump's 2024 win, was there to answer for it.

"If Jack Smith did that to Democrats, you'd never hear the end of it," Grassley said in a statement ahead of the hearing, accusing Smith of "rampant abuse of authority and political targeting" funded by taxpayers.

Smith didn't back down. In an opening statement obtained by ABC News, he said: "I stand by my decisions as Special Counsel, including my decision to bring charges against President Trump. I made these decisions without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election." He's said the same thing before, almost word for word, when he appeared before the House Judiciary Committee in January.

The Congress Phone Records Question

The hearing's real substance is "Arctic Frost," the FBI investigation that preceded Smith's appointment. Grassley and Sen. Ron Johnson, R-Wisconsin, have released records showing investigators reviewed text messages from 44 current and former members of Congress, Republicans and Democrats both, pulled from government phones via subpoenas to the National Archives. Separate subpoenas went to AT&T, Verizon and T-Mobile for lawmakers' toll records, according to Grassley.

A House report cited by the Daily Signal says Smith privately told Attorney General Merrick Garland that the targeted members "likely have a valid Speech or Debate privilege immunizing them from compelled testimony," a constitutional protection meant to keep prosecutors out of Congress's legislative business. Garland gave his "blessing" anyway, per the report, and investigators obtained gag orders so the lawmakers wouldn't know their records had been subpoenaed. The report's language is blunt: prosecutors "barely considered the constitutional protections" and "forged ahead" even after concluding their own subpoenas might be unconstitutional.

If federal investigators knowingly ran a legal risk against sitting members of Congress and got a gag order to keep them in the dark, that's not a partisan complaint. That's a separation-of-powers problem the House Judiciary Committee has already moved to address with the Congressional Records Protection Act, sponsored by Rep. Mike Kelly, R-Pennsylvania, which cleared committee in July.

This is a House Republican-authored report, not a court ruling. No judge has found the subpoenas unconstitutional. No charges stem from it. The allegation is real, documented, and unresolved, not proven wrongdoing in a legal sense.

The Axon Purchase

Breitbart, citing documents obtained by the Oversight Project through a Freedom of Information Act lawsuit, reported that Smith's office rushed to acquire forensic video-conversion software from Axon Investigate in the weeks before indicting Trump on election-related charges in August 2023. A records officer wrote to Axon on July 12, 2023, saying the office was "in desperate need" of the software and asked for overnight shipping. Smith's executive officer, Ariel McIntyre, briefly paused the order over the office's internal approval process, which she said Smith had set stricter than standard DOJ policy, before authorizing it hours later.

Axon would not disclose its pricing, and DOJ has withheld the cost as the company's confidential information, so taxpayers still don't know what was paid. Fox News estimated Smith's overall investigation cost more than $50 million based on DOJ reports. What specific proprietary video the office needed converted has never been publicly identified.

Two Competing Narratives

Senate Democrats, led by Ranking Member Dick Durbin of Illinois, call the entire hearing a waste of committee time. In floor remarks Monday, Durbin said Republicans are "spreading baseless conspiracy theories and attacking career prosecutors and FBI agents," and argued the committee should be focused on Trump's own conduct, including what Durbin called Trump's pressure campaign on state officials, his vice president, DOJ and Congress that preceded the January 6 Capitol attack. Durbin noted Garland appointed Smith, a "nonpartisan career prosecutor," in November 2022.

That's a fair point Smith himself has made under oath, telling the House Judiciary Committee in January: "No one, no one should be above the law in this country, and the law required that he be held to account." Smith's team indicted Trump on four counts in the election case and 40 counts in the classified documents case. Neither went to trial because DOJ policy bars prosecuting a sitting president, and Smith dismissed both after Trump's 2024 victory.

That policy doesn't answer the Speech or Debate Clause question, and it doesn't explain why a records officer was emailing "desperate need" pleas to a private contractor days before an indictment with no public price tag attached. Both things can be true: Smith followed his read of the law on prosecuting Trump, and his office may have run past constitutional guardrails chasing members of Congress.

What's Still Unresolved

House Republicans, led by Rep. Jim Jordan, have filed a criminal referral against Smith alleging perjury in his January testimony. Deputy Attorney General Todd Blanche confirmed in July that DOJ is reviewing the referral. Smith's attorneys have called it "spurious," arguing it takes his testimony out of context. No charges have been filed.

Separately, Judge Aileen Cannon has blocked DOJ from releasing Volume II of Smith's final report, covering the classified documents case, meaning the public still doesn't have Smith's full account of that investigation. Whether that volume ever sees daylight, and whether DOJ's review of the perjury referral produces charges, are the two open threads hanging over Tuesday's testimony.