A Republican senator on Wednesday sued the former special counsel Jack Smith and the Justice Department, arguing that a subpoena for her phone records during an investigation into Donald J. Trump violated the Constitution. The complaint, filed by Senator Marsha Blackburn of Tennessee in her state’s Middle District, could put before the courts a novel and contested constitutional issue on a matter that has become a Republican talking point: whether the so-called speech or debate clause bars subpoenas to phone companies for data about lawmakers’ communications.
Ms. Blackburn was among several lawmakers who apparently interacted with Mr. Trump while he was president, or with his proxies, during a period of days around the Jan. 6, 2021, riot at the Capitol. The lawsuit seeks a declaration that Mr. Smith conspired to violate her rights, $1 in symbolic damages from the former special counsel, and an order that the Justice Department destroy her records.
When Mr. Smith oversaw an investigation into Mr. Trump’s attempt to overturn the 2020 election, he signed off on subpoenas to phone companies for lawmakers’ toll records, or logs showing when calls took place, but not their contents. The subpoenas were accompanied by nondisclosure orders to the phone companies, but came to light last year. Republicans have portrayed themselves as having been unfairly targeted, and have framed the subpoenas for their call records as violating the speech or debate clause.
In her lawsuit, Ms. Blackburn’s lawyers said she sought to hold Mr. Smith “accountable for his gross abuse of power and his disregard for the Constitution’s separation of powers, the speech or debate clause,” and for other allegations. Mr. Smith faced similar accusations on Tuesday when he appeared before the Senate Judiciary Committee. Ms. Blackburn is a member of the panel but did not attend the hearing.
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