As revelations about former special counsel Jack Smith’s investigation into the Jan. 6, 2021, U.S. Capitol protest come to light, an investigation of the investigator could go in several different directions.
Those directions include criminal charges against certain Justice Department personnel, civil rights lawsuits against federal agencies, a judicial impeachment, and presidential pardons, legal experts say.
The Senate has been investigating a weaponized Justice Department under President Joe Biden, and a whistleblower has provided information about the conduct of the Smith investigation, dubbed “Arctic Frost,” into then-former President Donald Trump and his dispute with the outcome of the 2020 election.
Earlier this month, the Senate Judiciary Committee released a set of documents—separate from the ones the whistleblower provided—that show the Smith team collected cellphone data from nearly a dozen Republican senators.
This week, Republican senators released 197 subpoenas that Smith’s investigative team issued in 2023 as part of its case against Trump that also seemed to encompass numerous people and organizations in Trump’s orbit.
The subpoenas were provided to Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, by a whistleblower and were directed at 34 individuals and 163 businesses.
Grassley and Sen. Ron Johnson, the chairman of the Permanent Subcommittee on Investigations, released the documents Wednesday.
Smith’s subpoenas sought broad information, including the communications of several Republican senators, conservative organizations, and multiple individuals supporting Donald Trump’s 2020 reelection.
The Smith team sought communications with media companies; communications with “any member, employee, or agent of the Legislative Branch of the U.S. Government;” communications with White House advisors such as Stephen Miller, Jared Kushner, and others; data on Republican donors and fundraising efforts; and broad financial data relating to conservative individuals and entities, including credit reports.
Here are four things to expect from the congressional probe of the Smith prosecution of Trump.
1. Impeaching Judge Boasberg
On Wednesday, Sen. Ted Cruz, R-Texas, called for the impeachment of Chief Judge James Boasberg of the U.S. District Court for the District of Columbia.
Boasberg signed off on a gag order in 2023 to prevent businesses that were subpoenaed from informing their clients. That included preventing AT&T from notifying Cruz that his cellphone records were being collected by investigators.
Cruz said there were no facts or evidence to justify such a gag order and added, “I am right now calling on the House of Representatives to impeach Judge Boasberg.”
Rep. Brandon Gill, R-Texas, a member of the House Judiciary Committee, which would oversee a judicial impeachment, posted on X, “Working on it,” in response to Cruz’s call.
Gill and other House Republicans previously supported separate articles of impeachment against Boasberg, a Barack Obama appointee to the court, because earlier this year, Boasberg issued orders prohibiting the Trump administration from deporting alleged illegal alien gang members.
Boasberg’s office did not respond to inquiries from The Daily Signal for this story. Judges typically do not comment to the media.
2. Presidential Pardons?
The subpoenas Grassley and Johnson released reveal that Smith’s team had a significant interest in a group of alternate Electoral College electors who had been charged by state prosecutors.
After Trump disputed the outcome of the 2020 election, a group of alternate electors convened in seven states and cast their votes for Trump.
The electors, in theory, were supposed to step in if the Trump campaign could prove election fraud or if the joint session of Congress that was supposed to certify the electors and their votes did not accept the official set of electors certified by the states. The states were Arizona, Georgia, Michigan, Nevada, Wisconsin, New Mexico, and Pennsylvania.
The Democrat attorneys general in three of those states, as well as the Fulton County, Georgia, District Attorney’s Office, secured grand jury indictments against the contingent electors. The charges were typically for alleged forgery, impersonating a public officer, attempting to file false documents, and conspiracy to commit election fraud.
At least four times in the newly released 197 subpoenas, those who received the subpoenas were asked for records of communications “to, from, with, or including any of the” alternate electors listed and “the extent that the communication or document relates in any way” to the certification of the 2020 presidential election. Smith’s team sought records ranging from Oct. 1, 2020, through Jan. 20, 2021.
“President Trump should pardon all of the electors with a criminal indictment,” Cleta Mitchell, a senior legal fellow and founder of the Election Integrity Network with the Conservative Partnership Institute, told The Daily Signal.
She noted Smith’s team used the investigation to scoop up vast amounts of information on Republican senators and various conservative organizations.
“The entire case was predicated on the alternative electors,” Mitchell said. “How it went from there to the entire Republican Party and conservative movement is beyond me.”
Mitchell’s name was mentioned several times throughout subpoenas as the Smith team sought her communications and even her credit report.
“At some point, maybe because they were running out of time, they got Democrat AGs [attorneys general] in four states to bring charges,” she said. “They were acting as a proxy for the Biden administration.”
Although the charges against the electors were at the state level, Mitchell said the cases were clearly directed by the Smith investigation and the Justice Department.
She thinks Trump should pardon the electors and let the states attempt to challenge the pardon.
“Do these states want a discovery process to demonstrate how closely they coordinated with the Biden administration?” Mitchell asked.
The Daily Signal reached out to the attorneys general offices of Arizona, Michigan, Nevada, and Wisconsin, as well as the office of Fulton County District Attorney Fani Willis. None responded as of publication time.
3. Criminal or Civil Accountability?
There is the potential for criminally prosecuting Justice Department personnel who were part of Smith’s investigative team, said Mike Howell, director of the Oversight Project, a watchdog group.
The charge of conspiracy against rights would apply anytime two or more individuals plotted to threaten, injure, or intimidate another American to prevent him from exercising his constitutional rights—in this case, the right to free speech and freedom of assembly, as well as the right against unreasonable searches and seizures.
“The federal code does not contemplate this type of nefarious activity from the FBI or the DOJ,” Howell told The Daily Signal. “There is not a neat statutory application for this. To de-weaponize the government, you need more statutory safeguards. You have a law on conspiracy against rights. There should be more.”
Howell said officials involved in Arctic Frost should be removed and then charged.
He anticipates more disclosures from the Justice Department and the FBI relative to the Smith investigation. However, he would like to see far more disclosures than he anticipates will actually come out.
“Our definition of wholesale accountability is not being matched by the current political leadership,” Howell said. “We want to see firings. Or, in the meantime, while waiting for firings, reassignments [to other positions].”
While the bar for criminal prosecutions of government abuse of power is high, there is a clear case for civil rights lawsuits, said Hans von Spakovsky, a senior legal fellow with The Heritage Foundation.
“There were potential civil rights violations by the Justice Department and FBI with all of the people targeted,” von Spakovsky told The Daily Signal. “They should consider [pursuing] both the federal agency and individuals for litigation.”
4. How Will Jack Smith Testify?
Smith’s attorneys, Lanny Breuer and Peter Koski, did not respond to inquiries from The Daily Signal, nor did their employer, the law firm of Covington and Burling.
CBS News first reported last week that Breuer and Koski wrote both Grassley and House Judiciary Committee Chairman Jim Jordan, R-Ohio, requesting that Smith be allowed to publicly testify about his investigation.
“Given the many mischaracterizations of Mr. Smith’s investigation into President Trump’s alleged mishandling of classified documents and role in attempting to overturn the results of the 2020 election, Mr. Smith respectfully requests the opportunity to testify in open hearings before the House and Senate Judiciary Committees,” the lawyers wrote.
They added that their client “steadfastly adhered to established legal standards and Department of Justice guidelines, consistent with his approach throughout his career as a dedicated public servant.”
Grassley responded to Smith’s lawyers in a letter last week that asserted the committee is still gathering records but said, “In the meantime, there are preliminary questions that you can answer now.”
The letter asked several questions, including what roles the Biden White House and Attorney General Merrick Garland played in the case.
A public hearing for Smith to justify himself will not produce more facts, von Spakovsky said. “There needs to be a deposition of him questioned by skilled lawyers who can get to the root of what he was doing, not a forum where every senator has just five minutes of questions” for him.
