WASHINGTON — A provision tucked into the the funding package that the Senate passed Monday night as a part of a bipartisan deal to reopen the government would allow senators to sue the federal government for potentially millions of dollars if their data is obtained without being notified.
The legislative language would uniquely benefit eight Republican senators who were recently found to have had their phone records — but not the contents of their calls or messages — accessed as a part of the investigation that led to former special counsel Jack Smith’s probe of the Jan. 6, 2021, attack on the U.S. Capitol.
While the bill does not explicitly mention Smith’s probe, the language would retroactively apply to data requests that were made on or after Jan. 1, 2022, meaning the request of the Republican senators’ data, which was made on Sept. 27, 2023, would be susceptible to a lawsuit.
The eight senators who had their phone records accessed are: 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.
The provision in the bipartisan bill, first reported by The New York Times, appears to only apply to senators, even though Rep. Mike Kelly, R-Pa., also had his phone data requested as a part of the previously disclosed probe.
The provision requires that senators be notified if their data has been disclosed. If they aren’t and they successfully sue, the court would be required to award “the greater of statutory damages of $500,000 or the amount of actual damages” for each violation.
It would not apply if the senator was the target of a criminal investigation or if a court ordered that the notification be delayed.
It’s not clear who asked for the language to be added to the bill, or if it was done over the objections of any senators.
NBC News has reached out for comment to the offices of: Senate Majority Leader John Thune, R-S.D.; Senate Minority Leader Chuck Schumer, D-N.Y.; Senate Appropriations Committee chair Susan Collins, R-Maine; Senate Appropriations Committee vice chair Patty Murray, D-Wash.; Senate Appropriations Legislative Branch Subcommittee chair Markwayne Mullin, R-Okla.; and Senate Appropriations Legislative Branch Subcommittee ranking member Martin Heinrich, D-N.M.
The phone records accessed were part of an initial probe into President Donald Trump's efforts to overturn the 2020 presidential election results that began in 2022 and dubbed "Arctic Frost" by the FBI.
Senate Judiciary Committee chair Chuck Grassley, R-Iowa, last month called the revelation of the records search a “bombshell.”
“There’s no predicate that we can find for the solicitation of these telephone records, which I think emphasizes the political weaponization that was behind all this effort,” he said at the time.
While GOP senators reacted with shock to news that their phone records were obtained, those details were referenced in Smith's report, which was made public in January.
Attorneys for Smith responded to the claim that the requests were improper by sending a letter to Grassley saying the subpoena for records "was entirely proper, lawful, and consistent with established Department of Justice Policy.” Smith’s representatives then offered to have him testify publicly, an offer Grassley declined, saying, “the Senate Judiciary Committee is in the process of gathering these records through its constitutional oversight role and will need time to obtain and review them prior to formally calling for a hearing on this matter.”
Rep. Jamie Raskin of Maryland, the top Democrat on the House Judiciary Committee, blasted the provision in a statement Tuesday.
“The Senators may not like being treated like the rest of America, but these phone-record subpoenas and non-disclosure orders are routine in grand jury investigations at the state and federal level," he said. "No one has an absolute right to be notified that their call records have been subpoenaed, much less the right to a million bucks if it happens. This provision would not give any Americans other than U. S. Senators these rights."
After Grassley last month released a one-page unclassified document detailing that lawmakers phone records had been accessed, Thune wrote on X that he had “grave concerns” about about the FBI during the Biden administration, accusing it of an "outrageous abuse of power."
A spokesperson for Grassley declined to comment Tuesday on the legislative provision, as did a spokesperson for Sen. Dick Durbin of Illinois, the top Democrat on the Senate Judiciary Committee.
