A new provision allowing senators to sue the Justice Department over secretly subpoenaed phone data has sparked a fierce GOP intraparty clash — with supporters insisting it’s a long-overdue check on political overreach and critics warning it smacks of self-interest, even as they offer no clear plan to stop future abuses by the executive branch.
The provision, added quietly to the bill reopening the government, gave senators an explicit ability to file $500,000 lawsuits against the federal government for damages if they unwittingly had their phone data subpoenaed. It came in response to subpoenas made public by Sen. Chuck Grassley, R-Iowa, that showed former special counsel Jack Smith sought phone records for 10 Republican senators in 2022 as part of the FBI’s sweeping Arctic Frost investigation into President Donald Trump's alleged efforts to overturn the 2020 election.
The revelation led Republicans to decry the subpoenas as illegal and intrusive and Arctic Frost as "worse" than the Watergate scandal.
Critics, including some House GOP members, argue that the measure amounts to a means of self-enrichment. Supporters say it is necessary to give senators recourse when the executive branch oversteps its constitutional bounds and reaches into congressional communications.
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As is normal for prosecutors when conducting nonpublic inquiries, Smith sought gag orders for his subpoenas, and those orders were authorized by a judge, in this case U.S. District Chief Judge James Boasberg.
Boasberg has become a controversial figure due to his role in Arctic Frost; his refusal in 2021 to sentence former FBI attorney Kevin Clinesmith to prison time after he pleaded guilty to doctoring an email asking to extend surveillance permissions against a former Trump advisor; and after he issued a temporary restraining order in March blocking Trump's use of a 1798 wartime law to deport hundreds of Venezuelan nationals. As part of the latter case, Boasberg is considering whether to hold the Trump administration in contempt.
Attorney Rob Luther, a professor at George Mason University law school, said senators have added protections, including under the speech or debate clause of the Constitution, that could mean the gag orders were unlawful. Senators need to know about the subpoenas so they can contest them, he said.
The speech or debate clause immunizes members of Congress from facing legal action or prosecution for things they say or do as part of their official legislative work.
Luther said the gag orders, which blocked Verizon and AT&T from telling the senators their records were subpoenaed for one year, was "an infringement on the separation of powers, on their independence as a branch, and their ability to conduct their business in a free and open forum."
Smith recently addressed the outcry over the subpoenas, saying his investigative steps against members of Congress were "entirely proper, lawful, and consistent with established Department of Justice policy." He said that he sought toll records, that is, phone data that does not include the contents of calls and messages, which is routine.
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Still, an existing law states that court orders cannot block phone companies from notifying senators about the Department of Justice seeking their records.
The new provision in the funding bill revised that law to clarify that senators could file civil lawsuits against the DOJ as a remedy. The law includes a carve-out for cases where the lawmakers are the targets of an investigation, such as in the case of former Democrat Sen. Bob Menendez, who is now serving time in prison for corruption.
"These people are representing the people's interests," Luther said. "They're getting information from a lot of different sources, and people spying on who's feeding them information is a chill on the democratic process, so I'm not real sure there should be any covert investigations of phone records of elected officials, at least not under this statute."
The measure has received extra scrutiny due to some Republican House lawmakers joining Democrats in their outrage over the provision.
House Speaker Mike Johnson, R-La., has said Congress plans to soon vote to strip it from the funding bill. Other House Republicans complained about being caught off guard by the provision. They did not oppose finding some other way to deter future undisclosed subpoenas but said awarding senators taxpayer-funded damages was not the solution.
The provision's inclusion caused Rep. Greg Steube, R-Fla., to vote against the broader bill to open the government, telling reporters, "I'm not voting to send Lindsey Graham half a million dollars."
Sen. Lindsey Graham, R-S.C., has embraced the measure even as some of his Senate colleagues have distanced themselves from it. He said in a statement to Fox News Digital on Tuesday that he needs to be able to sue, and plans to do so, because Smith obtained his phone data.
Graham said Arctic Frost "was an extreme violation of separation of powers and a coordinated effort to try to prevent Donald Trump from the greatest political comeback in history."
"The goal is to make sure that, in the future, the cost of using subpoenas as political weapons is far too high. If not, the government will continue down this road," Graham said. "To those who suggest the government can’t be sued when it violates your rights, I couldn’t disagree more. A government that can violate your rights without accountability is a threat to your freedom."
The South Carolina Republican said he is also planning to introduce legislation to address subpoenas Smith sent targeting dozens of other Republican-aligned people and entities.
The first Trump administration subpoenaed phone records of Rep. Eric Swalwell, D-Calif., and then-Rep. Adam Schiff, D-Calif., and dozens of congressional staffers from both parties as part of a leak investigation.
Former DOJ inspector general Michael Horowitz warned in a report about the leak probe that lawmakers’ records should only be subpoenaed in limited circumstances because it "risks chilling Congress’s ability to conduct oversight of the executive branch."
The use of subpoenas to obtain records of Congress members and aides "may implicate separate and important constitutional considerations," Horowitz wrote, noting the "separation of powers, including the Supreme Court's recognition of Congress’s right to oversee the executive branch, and the Constitution’s Speech or Debate Clause in connection with Members of Congress and congressional staff."
One source familiar said the new provision was the brainchild of Sen. Ted Cruz, R-Texas, who also had his phone records subpoenaed. Asked for comment, Cruz’s office pointed to the senator remarking to Politico that Senate Majority Leader John Thune, R-S.D., added it to the funding bill.
"Leader Thune inserted that in the bill to provide real teeth to the prohibition on the Department of Justice targeting senators," Cruz said.
Sen. Marsha Blackburn, R-Tenn., another target of Smith's, said she supported repealing the provision. Blackburn signaled that she was more interested in a court finding the Biden DOJ infringed on Congress' work than any monetary award.
"If the Senate votes on the bill to undo the Arctic Frost provision in the government funding bill, I will support the effort to reverse it," she said in a statement to Fox News Digital. "This fight is not about the money; it is about holding the left accountable for the worst weaponization of government in our nation’s history."
Graham's warnings of an imminent lawsuit signal that even if the new provision is retroactively stripped from the funding bill, the constitutional questions about the subpoenas and gag orders could still land in the courts and force the judiciary to confront them head on.
The senators are also planning a hearing in December that zeroes in on Boasberg's role in the subpoenas. Several Trump allies have called for his impeachment, which the House would need to initiate. A federal judge's impeachment is exceedingly rare and typically has come as a response to bribery or other criminal behavior.
Liz Elkind and Alex Miller contributed to this report.