Sen. Marsha Blackburn, R-Tenn., filed a lawsuit against former Special Counsel Jack Smith on Wednesday over his “unlawful” seizure of her cell phone records during his Arctic Frost lawfare against Donald Trump. The suit also challenges the legality of Smith’s appointment as special counsel.
“Through his Arctic Frost witch hunt that targeted conservatives across America and even the President of the United States, Jack Smith perpetrated one of the worst abuses of government power in our nation’s history,” Blackburn said in a statement. “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.”
Represented by the New Civil Liberties Alliance (NCLA), Blackburn alleged that, while serving as special counsel, Smith violated her “constitutional and civil rights” by subpoenaing her cell phone toll records as part of his Arctic Frost inquiry. Smith sought and acquired a nondisclosure order from a federal court, “while withholding from the presiding judge the material fact that the subpoena sought the records of a sitting U.S. Senator,” according to NCLA. This NDO prevented Blackburn’s cell phone carrier from notifying her that Smith had subpoenaed her records.
The Tennessee senator is one of roughly 20 GOP members of Congress who had their toll records subpoenaed by Smith and his team. The Biden FBI also targeted numerous Republican and conservative organizations as part of the expansive Arctic Frost probe.
In her lawsuit, Blackburn alleged that Smith’s efforts to prevent her from being notified of the subpoena for her toll records violate the First Amendment, the Constitution’s speech or debate clause, and the Fourth Amendment’s “protection against unreasonable searches and seizures.”
“These facts and others laid out below establish that Defendant Smith conspired to violate Senator Blackburn’s Speech or Debate rights, First Amendment right of association, Fourth Amendment right to be free from unreasonable searches and seizures, and Civil Right to Support or Advocate for Donald Trump, because she is a Republican and a Trump supporter, all in violation” of federal law, the lawsuit reads.
[EXCLUSIVE: Jack Smith’s Team Ignored Attorney-Client And Speech Or Debate Privileges To Get Trump]
Blackburn also argued that Smith’s appointment by then-Attorney General Merrick Garland as special counsel was “unconstitutional,” a point previously raised by congressional Republicans. The Tennessee senator contended that Smith’s appointment was unlawful because he “was neither nominated to the role of Special Counsel (or any other role) by then-President Joe Biden nor confirmed by the Senate,” and “was not serving as a U.S. Attorney, nor in any other governmental capacity at the time of the purported appointment.”
“Even if Jack Smith had conducted a perfect investigation and had not violated all those constitutional and statutory rights … the entire investigation was unlawful anyway because he was acting as a private citizen,” NCLA Senior Litigation Counsel Caitlin Moyna said during a Wednesday press conference.
The lawsuit has been filed in the U.S. District Court for the Middle District of Tennessee. When asked during Wednesday’s presser about whether the Tennessee-based court has jurisdiction to hear the case as opposed to the D.C. District Court, NCLA Senior Litigation Counsel L. Margaret Harker told The Federalist that it does because the Blackburn materials targeted by Smith all originated in the Volunteer State.
“Jack Smith reached into the state of Tennessee to obtain a Tennessee senator’s legislative materials … pertaining to her position as a Tennessee senator using a Tennessee phone registered in the district, including phone calls that were made to and from that district,” Harker said. “Those facts are specifically alleged in the complaint, and that is the reason that the Middle District of Tennessee was chosen.”
NCLA President Mark Chenoweth also told The Federalist that Smith “was the acting U.S. attorney in the Middle District of Tennessee several years ago and continued to maintain a residence and own a home in the Middle District of Tennessee … when these events took place.”
Blackburn is asking the district court to declare Smith’s appointment as special counsel and his subpoenaing of her phone records to be unlawful. She also requested the court to issue one injunction requiring Smith to “destroy any of [her] legislative materials, or any notes or records reflecting the content of those materials, that are in his possession, custody or control,” and another mandating the Justice Department to return copies of her toll records and redact “any reference to the toll records or the content of the toll records” in its possession.
The lawsuit was filed a day after Senate Judiciary Committee Chair Chuck Grassley, R-Iowa, revealed that Smith’s team acquired the communications of more than a dozen media outlets — including The Federalist — during the course of his get-Trump inquiry. The Federalist has since learned that Editor-In-Chief Mollie Hemingway’s communications were among those seized by Smith and Co.
[READ: Jack Smith Spying On Trump Donors Is Latest Dem Ploy To Chill Americans’ Political Speech]
Grassley also disclosed that Smith’s team obtained nearly 5,000 checks written by Trump donors via subpoenas as part of Arctic Frost. These checks included the donors’ bank accounts and routing numbers, signatures, and home addresses.
Federalist Senior Legal Correspondent Margot Cleveland is of counsel for NCLA in this case.
