Senator Chuck Grassley (R-Iowa) has accused Special Counsel Jack Smith's office of overstepping constitutional boundaries in its investigation related to the 2020 election and the January 6th Capitol attack. Grassley asserts that the acquisition of text messages belonging to approximately 44 lawmakers, including Democrats, may have violated the Constitution's Speech or Debate Clause, which provides absolute protection to members of Congress for their legislative activities.
Grassley characterized Smith's investigation as a "runaway train with no brakes" and stated that Smith "ran roughshod over the Constitution." The National Archives reportedly provided the texts to Smith's team in August 2023. Among the lawmakers whose messages were accessed was former House Speaker Kevin McCarthy.
Smith's office has previously stated that they "take the protections of the Speech or Debate Clause seriously." However, internal records unearthed by Grassley reportedly indicate that the Department of Justice had concerns about whether the clause precluded their surveillance efforts. According to Grassley, these concerns were dismissed.
Smith, who led the prosecution against former President Donald Trump for allegedly attempting to overturn the 2020 election results and for his handling of classified documents, is now facing scrutiny. Trump was charged under statutes such as "conspiracy against rights," a law enacted in the 1870s, and the 1917 Espionage Act. Smith maintained that Trump's actions constituted a criminal scheme to deprive Americans of their right to vote.
Further adding to the controversy, Senator Eric Schmitt (R-Mo.) has suggested that Smith should face prosecution for allegedly lying to Congress. Schmitt pointed to Smith's deposition in December, where he reportedly responded "No, I don't recall that" when asked if he sought search warrants for members' text messages and stated "Correct" when asked if he stopped short of searching texts. Grassley is seeking to have Smith testify again before Congress.
The Speech or Debate Clause, a cornerstone of legislative immunity, stems from historical protections against executive overreach, originating as far back as England's Glorious Revolution in 1689. The Supreme Court has affirmed that this immunity is essential for Congress to conduct its legislative business without undue interference.