Washington — A provision of the legislative package that would end the government shutdown allows senators to bring lawsuits if federal law enforcement seizes or subpoenas their data without notifying them, with potential damages of $500,000 for each violation.
The language appears to allow GOP senators to sue over steps that the Justice Department took during special counsel Jack Smith’s investigation into President Trump related to the 2020 election. In October, Senate Republicans revealed an FBI document that showed investigators had obtained phone record data from eight senators and one congressman for calls they made in the days before and after the Jan. 6, 2021, attack on the Capitol. The records were obtained pursuant to a subpoena in 2023, and the new legislation covers alleged violations dating back to 2022.
The revelation that their call records were obtained infuriated the lawmakers, who accused the Biden administration of weaponizing the Justice Department to target Republicans.
“The FBI’s actions were an unconstitutional breach, and Attorney General Bondi and Director Patel need to hold accountable those involved in this serious wrongdoing,” said GOP Sen. Chuck Grassley of Iowa, the chairman of the Senate Judiciary Committee. He said the Biden administration’s actions were “arguably worse than Watergate.” A spokesperson for Grassley did not immediately respond to a request for comment on the new legislation.
The document said the FBI collected “limited toll records,” which include information about which numbers participated in a call and how long it lasted, but not the contents of the conversation themselves.
In a letter to lawmakers on Oct. 21, attorneys for Smith defended his investigative steps as “entirely lawful, proper and consistent with established Department of Justice policy.”
According to the indictment of President Trump in connection with the 2020 election, part of Smith’s investigation into the Jan. 6 attack focused on Mr. Trump’s alleged attempts to call senators and representatives to pressure them into delaying certification of President Biden’s Electoral College victory. Smith’s lawyers have said he is eager to testify publicly about the two Trump probes he oversaw.
The language in the new legislation requires service providers to alert Senate offices and the Senate sergeant at arms if federal law enforcement requests senators’ data, and says a court cannot delay the notification unless the senator is the target of a criminal investigation.
The bill further states: “Any Senator whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed in violation of this section may bring a civil action against the United States if the violation was committed by an officer, employee, or agent of the United States or of any Federal department or agency.”
The bill says senators are entitled to $500,000 for each violation of the notification provisions, and it prevents the government from invoking several types of immunity to rebut the claims. Suits can be brought up to five years after a senator is first made aware of a violation, and allows senators to bring suits for any instances that occurred after January 2022. The FBI analyzed the senators’ call records in 2023, meaning they could bring lawsuits under the legislation.
The government can defend against a suit by asserting that a senator was a target of a criminal investigation and by showing that a required notification about the records being pursued was delayed under a court order.
The lawmakers whose records were obtained in 2023, according to the FBI document, were Sens. Lindsey Graham of South Carolina, Bill Hagerty of Tennessee, Josh Hawley of Missouri, Dan Sullivan of Alaska, Tommy Tuberville of Alabama, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming and Marsha Blackburn of Tennessee, as well as Rep. Mike Kelly of Pennsylvania.
