'Flagrant violation': GOP lawmaker grills Jack Smith for 'spying' on former House speaker

Rep. Brandon Gill (R-Texas) confronted ex-special counsel Jack Smith during a House committee hearing, accusing him and the Justice Department of secretly surveilling members of Congress and stomping on constitutional protections while investigating President Donald Trump.

Gill pressed Smith on his office using secret subpoenas and nondisclosure orders to obtain phone "toll records" from lawmakers, including then-Speaker of the House Kevin McCarthy (R-Calif.), without notifying them or the public.

'Nobody's going to sue. ... So who cares? We're going to do it anyway.'

"In January of 2023, did you subpoena then-Speaker of the House Kevin McCarthy's toll records?" Gill asked.

“Yes, sir, we did,” Smith replied.

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Gill pushed back, claiming Smith abused executive power to secretly collect phone data on Republican leadership.

“Collecting months’ worth of phone data on the Republican speaker of the House — the leader of the opposition — right after he got sworn in as speaker, all around the time of a major vote — that sounds like a flagrant violation of the Speech or Debate Clause to me,” Gill said.

The confrontation ramped up as Gill questioned Smith about the nondisclosure orders used to prevent McCarthy from learning that his records had been subpoenaed.

“At the time you secured those nondisclosure orders, was Speaker McCarthy a flight risk?” Gill asked.

“He was not,” Smith answered.

"Then why did your nondisclosure order refer to him as a flight risk?" Gill pressed. Gill then cited language in the court filing stating that disclosure could result in “flight from prosecution.”

“You think the speaker of the House is ... going to hop on a plane and leave the country?” Gill asked.

“No,” Smith said, arguing that the language was not meant to apply personally to McCarthy but to general investigative risks.

Gill rejected that explanation.

RELATED: House Republican seeks criminal investigation into Jack Smith's alleged surveillance scheme

Photo by Ricky Carioti/Washington Post/Getty Images

“This is clearly in reference to Speaker McCarthy,” Gill said. “You were using clearly false information to secure a nondisclosure order to hide from Speaker McCarthy and from the American people the fact that you were spying on his toll records.”

Gill also revealed that Smith’s office issued additional secret subpoenas in May 2023 for the toll records of nine U.S. senators and another House member, along with more nondisclosure orders.

“So again, nobody would know what you were doing,” Gill said. “The senators wouldn’t. The representatives wouldn’t. The American people wouldn’t.”

Gill then read from an internal DOJ email warning of “litigation risk” tied to compelling disclosure of lawmakers’ phone records due to Speech or Debate Clause concerns.

“As you are aware, there are some litigation risks regarding whether compelled disclosure of toll records of a member’s legislative calls violates the Speech or Debate Clause,” Gill read.

Gill emphasized another line from the same analysis, saying that because of "the low likelihood that any of the members listed below would be charged, the litigation risk should be minimal here.”

“In other words,” Gill said, “You're using a novel legal theory. ... You're not charging any of these members. Nobody’s going to know about it because you issued NDOs. Nobody’s going to sue. ... So who cares? We’re going to do it anyway.”

“You walked all over the Constitution throughout this entire process,” Gill added.

“It’s absolutely disgraceful.”

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