Senator Marsha Blackburn has sued former special counsel Jack Smith, alleging his team secretly obtained her phone records during the Trump investigation. Smith testified on Sept. 29, 2026, that the Justice Department's Public Integrity Section approved the effort and that it complied with department procedures. Legal experts say the case raises novel questions under the Speech or Debate Clause because the records were accessed before any judicial review. The lawsuit may force courts to clarify what post‑hoc remedies are available to lawmakers and could prompt renewed scrutiny of DOJ secrecy orders.
Marsha Blackburn Sues Jack Smith, Alleging Secret Access to Her Phone Records
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Senator Marsha Blackburn (R-Tenn.) has filed a lawsuit against former special counsel Jack Smith, alleging that Smith's team secretly obtained her phone records during the investigation into former President Donald Trump, according to reporting by Politico. The complaint was filed one day after Smith testified before the Senate Judiciary Committee on Sept. 29, 2026.
What Blackburn Alleges
The suit contends Blackburn was not informed before investigators accessed her call records and that the retrieval may have violated constitutional protections for lawmakers. Blackburn argues the access deprived her of the opportunity to seek pre‑emptive judicial review under the Speech or Debate Clause, which shields members of Congress from prosecution for official legislative activities.
Smith's Defense and DOJ Practice
During his Senate testimony, Smith said the effort to obtain lawmakers' call records was reviewed and approved by the Justice Department's Public Integrity Section and that the step complied with department rules. The Justice Department has long defended its practice of seeking secrecy orders from federal courts to prevent telecommunications providers from notifying subscribers that they have received subpoenas.
Legal Stakes and Expert Views
Several senators and legal scholars say the case raises novel questions about the reach of the Speech or Debate Clause and what remedies are available when potential violations are discovered after the fact. Stan Brand, former counsel to the House when Tip O'Neill was speaker, said Blackburn's lawsuit could provide an important test of whether members of Congress can obtain post‑hoc relief when their records are accessed without prior judicial review. In his words:
Stan Brand: 'How do you remedy that after the fact? I think it's worthy of consideration.'
Related Case Law and Context
The litigation also arrives amid broader controversy over Smith's appointment and investigative tactics. President Donald Trump has argued the probe is unconstitutional, and U.S. District Judge Aileen Cannon previously ruled that Smith's appointment was unlawful — a ruling the Justice Department has not conceded. In 2023, the D.C. Circuit Court of Appeals allowed Smith's team to review a subset of records seized from Representative Scott Perry's phone, saying a fact‑specific inquiry was necessary to determine whether particular materials were legislative and therefore protected.
The Blackburn suit could force courts to clarify whether and how lawmakers can challenge access to their records after investigators have already reviewed them and may prompt renewed scrutiny of the DOJ's use of secrecy orders in sensitive investigations involving members of Congress.
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