Special counsel Jack Smith's team obtained and reviewed text messages from 44 current and former members of Congress as part of his investigations, according to Justice Department records released by two Republican-led Senate committees. The messages were contained within White House records subpoenaed from the National Archives, covering the period of October 1, 2020, through January 20, 2021.
House Judiciary Committee Chairman Jim Jordan, R-Ohio, has issued a criminal referral for Smith, alleging the special counsel misled Congress by stating he had not obtained or reviewed lawmakers' text messages. The referral suggests the Department of Justice investigate Smith's conduct. Smith's attorneys, however, have called the referral "meritless," stating that Smith provided truthful and responsive answers during his deposition and did not proactively disclose information not responsive to specific questions.
Senators Chuck Grassley, R-Iowa, and Ron Johnson, R-Wis., through their committee roles, were responsible for the release of the new documents. Both senators criticized Smith's investigation, with Grassley stating that Biden DOJ and FBI investigators "apparently ignored their own routine investigative protocols" to access messages from lawmakers outside the scope of the investigation. Johnson echoed this sentiment, calling it an "abuse of power" and a "grotesque example of the Biden administration’s weaponization of the Justice Department."
Among the lawmakers whose text messages were reviewed are Senators Lindsey Graham, R-S.C., Josh Hawley, R-Mo., and Mike Lee, R-Utah. Hawley, who was the first senator to announce his intention to object to the certification of Electoral College votes, stated that Smith "illegally scooped up the text messages of Senators — including mine." Lee described the collection of messages as "un-American" and "uncomfortably close to spying on a coequal, coordinate branch."
Members of the House of Representatives whose communications were reportedly accessed include Rep. Kevin McCarthy, R-Calif., Rep. Steve Scalise, R-La., and Rep. Jim Jordan, R-Ohio. Scalise, as House Republican whip, was in communication regarding strategies for challenging the 2020 election results. Jordan participated in discussions about delaying the January 6 certification and reportedly had a call with then-President Donald Trump on the morning of January 6.
The documents suggest that Smith's investigative team "apparently bypassed" a filter team established to screen potentially privileged material before investigators accessed it. Republicans have broadly criticized the Jan. 6 committee, arguing it lacked opposition voices and focused too little on security failures. The lawmakers targeted in the probe, including both Republicans and Democrats, have voiced concerns about the scope and methods of Smith's investigation.