Most of the senators whose data was requested as part of the investigation that led to special counsel Jack Smith’s Jan. 6 probe have now distanced themselves from a provision included in the shutdown-ending bill, signed into law by President Donald Trump, that would let them sue the government for potentially millions of dollars for not notifying them when accessing their records.
“I have no plans at this time” to sue, Sen. Ron Johnson, R-Wisc., said in a statement shared with NBC News. “If I did sue, it would only be for the purpose of using the courts to expose the corrupt weaponization of federal law enforcement by the Biden and Obama administrations. With the full cooperation in our congressional investigations from the Trump DOJ and FBI, that shouldn’t be necessary.”
Trump’s Justice Department gave Senate Republicans a document naming eight GOP senators and one member of the House whose data was accessed as part of the Jan. 6 investigation. And under this new retroactive statute, which does not explicitly name Smith, the senators would be afforded a unique ability to sue the government and potentially rake in up to $500,000 for each “instance” of data collection. (The provision only applies to senators and would not apply if a senator was the target of a criminal investigation.)
Several senators have already indicated that they won’t seek a payout.
Sen. Bill Hagerty, R-Tenn., says he will not sue the government by using the provision included in the government funding bill, even though his data was requested as part of the investigation that led to Smith’s investigation.
“I am for accountability for Jack Smith and everyone complicit in this abuse of power,” Hagerty said in a post on X on Thursday. “I do not want and I am not seeking damages for myself paid for with taxpayer dollars.”
Sen. Josh Hawley, R-Mo., issued a statement calling the measure, which both Republican and Democratic leaders in the Senate signed off on, “a bad idea.”
“I think the Senate provision is a bad idea,” Hawley said, adding, “There needs to be accountability for the Biden DOJ’s outrageous abuse of the separation of powers, but the right way to do that is through public hearings, tough oversight, including of the complicit telecom companies, and prosecution where warranted.”
A spokesperson for Sen. Dan Sullivan, R-Alaska, told NBC News in a text, “Senator Sullivan first learned about this provision when he and his staff were reading the bill to reopen the government. He does not plan on suing and is supportive of the House bill to repeal the provision.”
Sen. Marsha Blackburn, R-Tenn., who earlier supported the provision, said in a new statement, “If the Senate votes on the bill to undo the Arctic Frost provision in the government funding bill, I will support the effort to reverse it.”
“This fight is not about the money; it is about holding the left accountable for the worst weaponization of government in our nation’s history. If leftist politicians can go after President Trump and sitting members of Congress, they will not hesitate to go after American citizens,” she added.
But Sen. Lindsey Graham, R-S.C., said he would “definitely” sue the government, telling reporters Thursday, “It bothers the hell out of me and I’m going to sue, and I’m going to create opportunities for others to sue that weren’t in the Senate.”
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Earlier in the week, he said, “If you think I’m gonna settle this thing for a million dollars, no, I want to make it so painful no one ever does this again.”
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In a post on X on Thursday, Sen. Tommy Tuberville, R-Ala., called for Smith to be “DISBARRED and THROWN IN JAIL” — and if he isn’t, Tuberville said, he will “sue the living hell out of every Biden official involved in this to make sure this NEVER happens to a conservative again.”
A spokesperson for Sen. Cynthia Lummis, R-Wyo., said the senator did not author the provision and “hasn’t really considered” whether she would sue for damages.
The senators’ comments came after House Speaker Mike Johnson said he would hold a vote on the House floor to repeal the provision inserted by his Senate counterparts.
Johnson told reporters this week that he was “shocked” and “angry” about the statute being “dropped in at the last minute,” and that most House Republicans wanted to reverse it, as he communicated to Senate Majority Leader John Thune.
It’s not yet clear what will happen in the Senate, where a GOP aide said the language was a “member-driven provision.” Sen. Ted Cruz, R-Texas, said it was Thune who “inserted that in the bill to provide real teeth to the prohibition on the Department of Justice targeting senators.”
A Democratic aide told NBC News that Schumer “fought to make the provision prospective to protect his members from a corrupt and out-of-control DOJ” under Attorney General Pam Bondi.
Thune's office declined to comment.
The eight Republican senators whose phone “tolling records” were accessed were Johnson, Graham, Hagerty, Hawley, Sullivan, Tuberville, Lummis and Blackburn. Rep. Mike Kelly, R-Pa., also had his phone records accessed but he is not covered under the Senate provision.
