Was Special Counsel Jack Smith’s prosecution of President Trump a “runaway train with no brakes”?
That’s the phrase used by Sen. Charles Grassley (R-Iowa) as he revealed that Smith obtained text messages to and from 44 lawmakers — including some Democrats — as part of his prosecution of the president. The National Archives turned over the texts to Smith in August 2023. The nonagenarian Mr. Grassley declares that Mr. Smith “ran roughshod over the Constitution.”
Violating America’s charter is the accusation that Smith levied at Trump, whom he charged with an obscure crime called “conspiracy against rights.” That civil-rights statute was first passed in the 1870s to combat the Klu Klux Klan. Smith argued Trump’s shenanigans in the wake of the 2020 election amounted to an effort to deprive Americans of their right to vote.
Smith was similarly reliant on a hoary statute from another age in his prosecution of Trump for the retention of classified documents. The former war-crimes prosecutor at the Hague alleged dozens of violations of the 1917 Espionage Act. That’s the same statute that sent Julius and Ethel Rosenberg to the electric chair as Soviet spies.
We’ll never know if Smith could have stuck the landing on any of those exotic charges — if he had, Trump would be in the big house rather than the White House. Smith still claims he would have convicted Trump “but for” the election.
Now, though, it is the prosecutor who is feeling the heat. His sprawling investigation into January 6 — code-named “Operation Arctic Frost” after a satsuma mandarin hybrid of a distinctly orange hue — swept up the comprehensive telephone metadata of 14 GOP members of Congress. A trove of text messages from dozens of other lawmakers was also included.
The rub, though, is that the Constitution gives ironclad protection to lawmakers — the Framers had seen all they needed to see about what happens when executive power runs amok. The Speech or Debate Clause promises Senators and Representatives that “for any Speech or Debate in either House, they shall not be questioned in any other Place.” It is as absolute a protection — and as strict a command — as can be found in the Constitution.
The Supreme Court explained in Doe v. McMillan that this immunity is driven by the belief that the “business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating.” The notion of such protection stretches way back to England’s Glorious Revolution of 1689. It’s as close to constitutional bedrock as you can strike.
Did Smith’s snooping subvert it? Internal records unearthed by Grassley show that the DOJ was concerned whether the clause precluded their surveillance. The question was raised and shunted aside. When Smith was deposed by Congress in December, he declared “My office and I personally take the protections of the Speech or Debate Clause seriously. I think they’re part of our Constitution.” Doth the prosecutor, though, protest too much?
“Jack Smith has answering to do” is how Grassley puts his desire to once again summon the prosecutor to the stand. For his part Smith has increasingly taken shots at Trump in the press, alleging that the president has “corrupted” the DOJ. Smith crows that he “will not be intimidated” and that he expects to be charged himself.
That prospect was raised by Sen. Eric Schmitt (R-Mo.), who during confirmation hearings for Acting Attorney General Todd Blanche declared that “Jack Smith should be subject to prosecution for lying to Congress.” During that same December deposition — conducted under oath — Smith was asked, “Did you seek a search warrant for the content of any text messages from Members?” He answered “No, I don’t recall that.” When asked if he stopped short of searching texts, he responded “Correct.”
That does not appear to have been true. Smith could soon be required to brush up on another section of the Constitution that he is used to seeing from the other side of the courtroom — the Fifth and Sixth Amendment’s protections offered to criminal defendants.
Ari Hoffman is the Associate Editor of The New York Sun, where he covers politics and culture.
This story originally appeared on NYPost
