How Jack Smith and the Biden-Harris Department of Justice Disregarded the Separation of Powers to Spy on their Political Opposition: Report
September 23, 2026
WASHINGTON, D.C. – Today, the House Judiciary Committee released an interim staff report titled, "How Jack Smith and the Biden-Harris Department of Justice Disregarded the Separation of Powers to Spy on their Political Opposition." The report reveals new information obtained by the Committee in the 119th Congress that shows the Biden-Harris Administration's efforts to use the Department of Justice (DOJ) as a weapon against its political opponents.
During the Biden-Harris DOJ's investigation of the 2020 election, codenamed Arctic Frost, and the subsequent Special Counsel investigation, investigators unconstitutionally subpoenaed phone records for over a dozen Republican Members of Congress and obtained gag orders to prevent the Members from knowing that the Biden-Harris Administration had obtained these records. Because the subpoenas and gag orders were obtained ex parte—meaning only the prosecutors presented to the grand jury and judge—the Members had no meaningful opportunity to challenge the Biden-Harris Administration's actions.
The evidence available to the Committee shows that Special Counsel Smith's team barely considered the constitutional protections surrounding this material—and to the extent that it did, it concluded that its subpoenas might be unconstitutional. Yet, Special Counsel Smith's team forged ahead, issued the subpoenas, and at one point, violated the DOJ's own procedures to review the content of private text messages between 44 Members of Congress and Executive Branch officials.
Arctic Frost investigators and Smith's team paid no attention to the Constitution's "absolute" bar on compelled disclosure of documents related to Members' legislative acts. Special Counsel Smith and his prosecutors admitted that the gag order deprived Members of the chance to appear in court to assert their constitutional rights under the Speech or Debate Clause. As Special Counsel Smith admitted privately to Attorney General Merrick Garland, "members . . . likely have a valid Speech or Debate privilege immunizing them from compelled testimony." Yet he, with Attorney General Garland's blessing, issued subpoenas compelling the production of Members' protected legislative records.
At best, these prosecutors ignored key legislative protections enshrined in the Constitution to guarantee that Members of Congress may freely deliberate on the questions of public policy. At worst—which seems likely in context with the other abuses of Special Counsel Smith's office—these prosecutors weaponized their law-enforcement authority to violate a key constitutional provision to gather reams of information about their Administration’s political adversaries.
The abuses uncovered demand legislative reforms to prevent a future Jack Smith from similarly violating the Constitution. On July 15, 2026, the Committee passed H.R. 9098, the Congressional Records Protection Act, introduced by Rep. Mike Kelly (R-PA). The bill seeks to protect the separation of powers enshrined in the United States Constitution and end the weaponized surveillance of Members of Congress. The Committee will continue to pursue the truth about this critical set of events in our nation's history.
Read the full interim staff report here.
During the Biden-Harris DOJ's investigation of the 2020 election, codenamed Arctic Frost, and the subsequent Special Counsel investigation, investigators unconstitutionally subpoenaed phone records for over a dozen Republican Members of Congress and obtained gag orders to prevent the Members from knowing that the Biden-Harris Administration had obtained these records. Because the subpoenas and gag orders were obtained ex parte—meaning only the prosecutors presented to the grand jury and judge—the Members had no meaningful opportunity to challenge the Biden-Harris Administration's actions.
The evidence available to the Committee shows that Special Counsel Smith's team barely considered the constitutional protections surrounding this material—and to the extent that it did, it concluded that its subpoenas might be unconstitutional. Yet, Special Counsel Smith's team forged ahead, issued the subpoenas, and at one point, violated the DOJ's own procedures to review the content of private text messages between 44 Members of Congress and Executive Branch officials.
Arctic Frost investigators and Smith's team paid no attention to the Constitution's "absolute" bar on compelled disclosure of documents related to Members' legislative acts. Special Counsel Smith and his prosecutors admitted that the gag order deprived Members of the chance to appear in court to assert their constitutional rights under the Speech or Debate Clause. As Special Counsel Smith admitted privately to Attorney General Merrick Garland, "members . . . likely have a valid Speech or Debate privilege immunizing them from compelled testimony." Yet he, with Attorney General Garland's blessing, issued subpoenas compelling the production of Members' protected legislative records.
At best, these prosecutors ignored key legislative protections enshrined in the Constitution to guarantee that Members of Congress may freely deliberate on the questions of public policy. At worst—which seems likely in context with the other abuses of Special Counsel Smith's office—these prosecutors weaponized their law-enforcement authority to violate a key constitutional provision to gather reams of information about their Administration’s political adversaries.
The abuses uncovered demand legislative reforms to prevent a future Jack Smith from similarly violating the Constitution. On July 15, 2026, the Committee passed H.R. 9098, the Congressional Records Protection Act, introduced by Rep. Mike Kelly (R-PA). The bill seeks to protect the separation of powers enshrined in the United States Constitution and end the weaponized surveillance of Members of Congress. The Committee will continue to pursue the truth about this critical set of events in our nation's history.
Read the full interim staff report here.
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