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Will Haun: Today on Sekulow, we have breaking news. Jack Smith's investigators secretly obtained text messages from members of Congress. Keeping you informed and engaged now more than ever, this is Sekulow. We want to hear from you. Share and post your comments or call 1-800-684-3110. And now your host. Welcome to Sekulow. Will Haun in studio today, and we are talking about this breaking news item. This is a release that comes from Senator Grassley and Senator Johnson as they are conducting oversight into Jack Smith's Arctic Frost investigation. That was the entire special counsel investigation into President Trump. Now as we've found out details along the way that were shocking. We first learned that they were getting subpoenas and warrants for the toll records, the phone records, of US Senators. They went to their phone companies and they issued warrants. We also know that then they were trying to seek the records of more than 400 conservatives and conservative-related organizations. If that wasn't enough, this new release is that they secretly obtained the text messages—not just the "if" they sent and received like the toll records, but the actual content of text messages—from 44 members of Congress amid this entire probe. This is a letter that was sent from the office of the Assistant Attorney General Patrick Davis to Chairman Grassley that talks about this. It says, and this is the bottom line, subsequent email documents, the files that are saved directly to the special counsel's team shared drive. Thus, the special counsel's investigative team apparently bypassed the filter team and directly accessed these text messages. The FBI then identified the people whose phone numbers sent or received the text messages, and it is 44 members of Congress, including 20 US Senators and 24 members of the House of Representatives, including some Democrats like Cory Booker, Congressman Adam Smith from Washington, and the current mayor of Los Angeles, then-Congresswoman Karen Bass. Where's the outrage from them? We're going to break it all down for you, what this means, the shocking kind of details that go along with this. I'll be joined by Chief Counsel of the ACLJ, Jay Sekulow, in the next segment, as he will break this down for you as well. It's shocking because they went around their entire process. The filter team was in place from the Department of Justice to try and mitigate these issues, to try and make sure they weren't accessing text messages from sitting members of Congress that they weren't supposed to. And this is where it's the craziest part of it all to me. On June 2, 2023, Senior Assistant Special Counsel Thomas Windom asked the National Archives and Records Administration General Counsel for all text messages from October 2020 through January 20, 2021, for phones associated with a long list of White House individuals. That includes people like the current CIA director, by the way. We'll talk about that as well. The National Archives turned them over August 21, 2023. Within 26 minutes from that email coming from National Archives to the special counsel's team, the Senior Assistant Special Counsel had downloaded all the files and disseminated them and started getting people to review them before this filter team even had a chance to open the email. Folks, we're going to talk about this, the seriousness of this, and some of the work of the ACLJ that is ongoing on this very issue when we come back. Call me if you want to talk about Jack Smith and the egregious abuse of power that we are seeing from this former special counsel. 1-800-684-3110 to talk to me on air as well. You can support the work of the ACLJ. Your donations are doubled at aclj.org/liberty. That's right, aclj.org/liberty. Donate today and have your gift doubled.
Will Haun: Welcome back to Sekulow. Joined on the phone right now by Chief Counsel of the ACLJ, Jay Sekulow. This came out yesterday evening as Senator Grassley, the chairman of the Senate Judiciary Committee, as well as Chairman Ron Johnson of the Senate Investigations Committee, released this information. Senator Johnson said it shouldn't be shocking at this point, but it should be outraging to those that see this news because it appears that there are no depths to the constitutional violations and the ways that this special counsel decided to run roughshod over the Constitution. Jay, what was your take when you saw this about what the special counsel was doing, obtaining the text messages from sitting members of Congress?
Jay Sekulow: I think what Senator Johnson said is exactly correct. No one's shocked, although it is shocking that he did this, but it's not shocking because we saw the abuses taking place by the Department of Justice with Jack Smith in particular. The outrage is palpable. When you sit back and see a list of 30-something US Senators and House of Representative members that have now had their text messages reviewed by a special counsel from the Department of Justice, you have the executive branch spying, basically, on the legislative branch. You're talking about constitutional violations of which we have not seen in our lifetime. This is the quintessential example of not just government overreach, but government run amok with no moorings, with no guideposts, and with no influence that would stop it. They were on a runway that was never-ending to violate the Constitution here, and they did. Now the question is going to be how do you hold them accountable, and we're looking at that as well. But this is beyond the pale. It is beyond the scope of legitimate prosecutorial inquiry. This was the executive branch, as I said, spying on members of the United States House and Senate and people that they were talking to. You may have had news media people. I mean, I could think of First Amendment violations, 14th Amendment violations. You could write a phone book full of violations. We'll see what the Department of Justice does, but I will tell you this, the ACLJ, we're looking at it and we will take action.
Will Haun: One of the more shocking parts of this is that we knew how aggressively he was operating as a special counsel and was ignoring the rules of the game as he went along. But when you read this, that the Department of Justice had a filter team in place to try and filter out records that the special counsel can legitimately ask for, it was supposed to filter out things that may be attorney-client privilege, that may be speech and debate clause violations if he were to get his hands on for members of Congress. Anything that could have raised even a hint of a constitutional violation. But it appears within 30 minutes, they were aggressively trying to go around that process.
Jay Sekulow: The taint team, by the way, because I dealt with that in representing President Trump—I dealt with these taint teams—it's kind of ridiculous anyway, but your point is well-taken. They distributed this material in a nanosecond, and they did that because, I'm assuming—I don't have evidence of this, but the timeline certainly indicates—they did this so they didn't have to go to the taint team. What the taint team would or would not have done with this, I don't know, but the idea that the executive branch of government, the Department of Justice, was looking at the access records and text messages of sitting members of Congress is unbelievable. Taint team or not. In one sense, the least of their problem is they didn't go through a taint team. That's an internal violation of their own policy, not shocking there either. But I'd like to know who knew this, too, by the way. Did Merrick Garland know this? Did President Biden know this? Did others within the Department of Justice know this? I'd like to know those answers. So I'd like to send out a Freedom of Information demand that says, who received this? Who got it? Who distributed it? Who was on that list? Was there information going from the Department of Justice to the White House about these very messages? And then, of course, you have the fact that Jack Smith went up before Congress and at a minimum obfuscated. He basically either dodged the question but left the clear impression that he did not see these documents.
Will Haun: I think this is the perfect time to play this because this is from just December of 2025. This isn't from years back. This is months old at this point. When you hear this, this is a congressional attorney doing a deposition of Jack Smith, and this goes to that question of toll records and text messages. Let's play bite one.
Guest (Male): Did the toll records that you requested from the senators include the content of the phone calls? No. Did the records that you requested, the toll records from the members of Congress, include the content of text messages? No.
Will Haun: So right there, did the toll records from the members of Congress include the content of text messages? His technicality is that these weren't toll messages. He left the clear impression to the American people and to members of Congress that it was just what we used to call these pings. I knew that I texted you, you texted me, I don't know what was said. That is not the case. They had the substantive text messages of these members of Congress and the people that they were texting. So Jack Smith at a minimum evaded the question, and I think really committed a form of perjury because he left... now, he may have a technical defense because of the way it said toll records versus text messages and how he got the text messages through the process. But the fact is what we cannot lose sight of is a member of Congress had his text messages reviewed by the Department of Justice, the executive branch again overseeing, invading the confines of the legislative branch. In the United States, you know what we call that? Unconstitutional and unacceptable. One question that this leads to for me, and this is something you've been critical of the special counsel process for years. You've had to deal with special counsels maybe more than anyone in the United States today when it comes to the Mueller probe and all of those issues. There was a lot of questions about even the way that Jack Smith was appointed, if that was even constitutional. I know that it was raised by Justice Thomas in a concurrence about whether this was even a process that follows the Constitution. Do you think that this could be, especially now that we see Cory Booker, Karen Bass, Adam Smith, Democrats having their rights violated by this special counsel, could there be a push within Congress to maybe change some of this?
Jay Sekulow: There should be. I have been critical of special counsels going back to the Bill Clinton era. I didn't like independent counsels before; at least they were accountable to the executive branch to the way the Constitution's set up. These special counsels are accountable to nobody. In a technical sense, they're accountable to the Department of Justice, but they operate totally independently. That process is ridiculous. It violates the Constitution. It creates a star chamber, and we shouldn't have that in the United States of America. It's not worth the risk to our constitutional republic.
Will Haun: Thank you so much for joining me on this important topic. Folks, we're going to be talking more about this in the next segment. Call in, 1-800-684-3110. I'm also going to talk about what our attorneys are doing right now. You heard our Chief Counsel Jay Sekulow allude to that earlier in this segment. We've already been investigating this through FOIA requests, through lawsuits that we have filed, including a lawsuit this week that was filed. Our attorneys right now, because this is new information, are going over what we already have to see which parts of it there may be overlap so that we know the best way forward to figure out who received these informations, who was privy to this information. Was it the Attorney General? Was it the President of the United States? We are looking at what we've already got in place and to see where we need to go next. We are that nimble here. We are able to turn on a dime when we have news like this come out that was gotten from the chairman of the Senate Judiciary Committee. This is a big deal, folks. And as we heard, this could be the impetus for change. When you start to see even members of Congress that are Democrats that are in the opposing party, so to speak, it shouldn't be partisan. What's happening here is an attack on our constitutional framework, on our Congress, on co-equal branches of government. And if you think that a special counsel, oh, it would never happen to an ordinary American, they're doing it to sitting US Senators and Congressmen. We'll be right back with more on Sekulow, but you can support our work by going to aclj.org/liberty and donate today.
Will Haun: Welcome back to Sekulow. Will Haun here, and I want to hear from you as you're hearing this news. Does it surprise you? Does it outrage you? Call me at 1-800-684-3110. I think this is something you should be outraged by. This is where a special counsel that was outside of the traditional framework of the Department of Justice because of how this is set up—very light accountability to the Department of Justice—was able to go and dig deep and do whatever he wanted. His team could do whatever they wanted and didn't really even pay attention to the rules and the guidelines that are there and tried to find clever ways around them. I'm going to play this bite. This is from the special counsel, Jack Smith, in a deposition before Congress in December. They were deposing him because they were finding out all these things that happened regarding this operation, the special counsel's investigation. Things like getting the phone records of sitting US Senators. They were outraged. But they tried to play it down. They said, no, it's not that big of a deal. We were just getting the toll data, if a congressman called or a senator called someone at the White House. That's all we could see. We weren't spying on them. We were just getting information, right? That's what we were told. He had the opportunity also to come clean then and say, hey, by the way, we also scooped up all these text messages. They didn't. Then down the line, more reporting that they not only went after members of Congress, but everyday Americans and people that were in conservative organizations. Turning Point USA was a part of that. This special counsel was targeting conservative organizations, trying to get their records. Oh, but don't be outraged. It was legitimate. It's fine. It was nothing, no invasion of privacy, whatever. Then we get to the revelation today that not only did they seek the toll records, but they scooped up 44 members of Congress, the content of their text messages. So we find this out today. But back in December, based off the toll records investigation, he was deposed by Senate investigators. It's an eight-and-a-half-hour deposition. It wasn't a 30-minute interview. Eight and a half hours. Multiple times, the content of text messages is brought up. We played a bite for you in the previous segment. I want to get bite 10 queued up for everyone. This is more from the investigative team asking Jack Smith, the former special counsel, about contents of text messages. And I want you to listen very carefully. What question is asked and how he answers it. Let's go ahead and roll this from the deposition in December.
Guest (Male): On the telephone call side, or for the content, relies mostly on text messages. Did you seek search warrants for the content of any text messages from members? From members? I don't recall. They were just toll records. Correct. Okay. But by not telling the members, by going through this NDO process, they didn't have an opportunity to litigate the speech or debate clause. That's correct. That's correct. And that sounds unfair in our view. I understand your position and, as I've said before, we respect the speech or debate clause. I'm aware of no case in the Supreme Court or the DC Circuit that says that getting non-content toll records from a third party violates the speech or debate clause, particularly where, I think an important point here is, these records were not sought to use against members of Congress who were targets.
Will Haun: Okay, so there's a lot to break down there. And I wanted to play this longer bite because the first part is about content, right? And he says, the attorney who's asking the questions, the investigator, says, did you seek a search warrant for the content of any text messages from members? Jack Smith goes, "From members?" He's clarifying. "Did I seek a search warrant from members for content?" And the attorney affirms that, says, "Yes, that's what I'm asking." He says, "No, I don't recall getting a search warrant for the content of their text messages." And the attorney then once again clarifies, it was just toll records, to which Jack Smith replies, "Correct." That first part, let's break it down because on the face of it, we know that they reviewed content of text messages. Here's where he's being tricky. How he got this was by going to the National Archives and asking for the content of text messages not from members of Congress, but from President Trump, Mark Meadows, Dan Scavino, Ivanka Trump, Stephen Miller, Peter Navarro, John Ratcliffe, Kash Patel, Rudy Giuliani, Kellyanne Conway, and Mike Pence. And then they didn't go to the filter team. So any person that that list of White House officials, including the President and Vice President, any person they were texting with, they got all that information from October to January 20th of 2021. So he's relying on the technicality. It's the lie of omission, where he says, "No, I didn't seek a search warrant for the content of members' text messages." But I definitely got it. He doesn't say that part. And then where it even goes on to show, because this was eight and a half hours, and he had multiple opportunities to talk about what he did get, where he's still hiding it from the investigators is when you hear that later part where they're saying, hey, and it gets into this non-disclosure order that they sought so members of Congress didn't know their toll records were being sought. And the judge, we've talked about that, didn't know it was members of Congress when they were requesting this. They were hiding the ball again from the judge that signed off on a non-disclosure order so the targets of the investigation didn't get notified that they were having their information sought. And he says, because the attorney's saying, "We think this is unfair, you didn't let members of Congress know that you were seeking their toll records," and he says, "I understand your position, as I said before, we respect the speech or debate clause." It doesn't appear that way. He says, "I'm aware of no case in the Supreme Court or DC Circuit that says getting non-content toll records from a third party violates the speech or debate clause." Because the other is not revealed, there is no direct questions asked of the special counsel about, "Hey, but what about you reviewing all this content the way you did without a filter team?" So his defense if they try to say you perjured yourself, you lied before Congress, he's going to be like, "They didn't ask me about this. They were asking about this. They were asking about me getting a warrant for their records." He's very crafty and very tricky. But you know what's about to happen? Senator Grassley, chairman of the Judiciary Committee in the Senate, said he's coming back. We're having more hearings on this. But right there, you can see how tricky he's being with the investigators, not forthcoming. And he's trying to make it seem like they never saw the content. But they did. We're going to talk about more of this when we get back on Sekulow. Support the work of the ACLJ at aclj.org. Your donations are doubled.