Sen. Marsha Blackburn (R-Tenn.) on Wednesday filed a lawsuit against former special counsel John 'Jack' Smith and the Department of Justice (DOJ), alleging that Smith violated her constitutional rights by subpoenaing her phone records during his investigation into President Donald Trump’s actions surrounding the 2020 election certification.
The lawsuit, filed in the U.S. District Court for the Middle District of Tennessee, accuses Smith of violating Blackburn’s First Amendment right of association and Fourth Amendment right against unreasonable searches and seizures. It also challenges the legality of Smith’s appointment by then-Attorney General Merrick Garland, arguing that his role as special counsel was unlawful under the Appointments Clause of the Constitution.
Blackburn’s legal complaint seeks to compel the DOJ to destroy or return the seized records and requests a court declaration that Smith’s appointment was unconstitutional. The suit follows a subpoena issued to Verizon, Blackburn’s cell phone provider, which included a nondisclosure order preventing Verizon from informing Blackburn about the request.
Sen. Bill Hagerty (R-Tenn.), who also had his phone records subpoenaed during the same investigation, separately filed a bar complaint against Smith with the Supreme Court of Tennessee, alleging prosecutorial misconduct and accusing Smith of failing to disclose critical legal facts when obtaining the records. Hagerty’s complaint argues that Smith’s actions violated Rules of Professional Conduct and undermined constitutional protections for legislative communications.
The legal actions come amid heightened scrutiny of Smith’s tenure as special counsel, including his testimony before the Senate Judiciary Committee on Tuesday. During the hearing, Smith acknowledged approving subpoenas for members of Congress despite awareness of the nondisclosure orders attached to them.
Legal and Constitutional Claims
Blackburn’s lawsuit asserts that Smith’s appointment by Garland was invalid because the Appointments Clause requires Senate confirmation for certain federal officials, which did not occur. The suit also invokes the Speech or Debate Clause, which shields members of Congress from civil suits or prosecutions for actions taken in their official capacity.
Hagerty’s bar complaint focuses on Smith’s alleged lack of candor in court filings, arguing that he withheld information about the constitutional protections applicable to legislative records. The complaint states that Smith obtained the records under a secret court order without notifying the senators or the court of the relevant legal safeguards.
Reactions and Broader Implications
Blackburn framed the lawsuit as a defense of constitutional principles, stating in a press release: “This lawsuit is solely about holding Mr. Smith accountable and ensuring that our nation’s justice system can never again be weaponized against the American people.” She has previously described Smith’s investigation as a “witch-hunt” targeting conservatives and the president.
Hagerty, in his complaint, called Smith a “blatantly partisan actor” whose actions “damaged our constitutional order” and called for him to be barred from practicing law. His post on X (formerly Twitter) also warned that further accountability may follow, stating, “Next up, @Verizon.”
The legal challenges raise broader questions about the scope of special counsel authority, the protections for legislative communications, and the accountability of federal prosecutors in politically sensitive investigations. Legal experts note that the cases could test the boundaries of congressional immunity and the Appointments Clause, potentially setting precedents for future disputes involving congressional oversight and executive branch investigations.
Background: The Arctic Frost Investigation
Smith’s investigation, codenamed Arctic Frost, examined efforts to overturn the 2020 election results, including Trump’s alleged role in pressuring officials and obstructing Congress’s certification process. The probe later expanded to include subpoenas for the phone records of multiple Republican lawmakers, though the full scope of the subpoenas and their legal justifications remain under scrutiny.
During his Senate testimony, Smith defended the subpoenas, asserting that they were necessary to gather evidence in a complex investigation. However, the inclusion of nondisclosure orders has drawn criticism from lawmakers who argue that such secrecy undermines transparency and congressional oversight.
The outcomes of Blackburn’s lawsuit and Hagerty’s bar complaint could have significant implications for the legitimacy of Smith’s investigation and the precedents set for future special counsel appointments and congressional protections.