Sen. Chuck Grassley speaks at a press conference on the Arctic Frost probe with other members of the Senate Judiciary Committee in Washington, D.C., Oct. 29, 2025. (Reuters/Annabelle Gordon)
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.
MAJOR PHONE CARRIERS REVEAL JACK SMITH'S SUBPOENAS FOR REPUBLICAN SENATORS' RECORDS
Sen. Lindsey Graham speaks during a news conference at the U.S. Capitol on July 31, 2024. (Kent Nishimura/Getty Images)
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."
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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.
Ashley Oliver is a reporter for Fox News Digital and FOX Business, covering the Justice Department and legal affairs. Email story tips to ashley.oliver@fox.com.
https://www.foxnews.com/politics/defense-senators-ability-sue-over-arctic-frost-subpoenas