NCLA Suit: Former “Special Counsel” Jack Smith Unlawfully Seized Sen. Blackburn’s Phone Records

Senator Marsha Blackburn v. John L. Smith, in his personal capacity, and the U.S. Department of Justice

Washington, DC, Sept. 30, 2026 (GLOBE NEWSWIRE) -- The New Civil Liberties Alliance has filed a complaint on behalf of U.S. Senator Marsha Blackburn in the U.S. District Court for the Middle District of Tennessee, challenging former “Special Counsel” Jack Smith’s unlawful subpoena of her cell phone toll records during the Arctic Frost investigation.

Jack Smith was illegally named Special Counsel in November of 2022, with Attorney General Merrick Garland handing a private citizen the sweeping powers of a special counsel. Then-President Biden did not nominate Smith, nor did the Senate confirm Smith as either Special Counsel or in any other position. And no statute authorized his appointment. NCLA’s complaint asks the Court to declare Smith’s appointment unlawful under the Constitution’s Appointments Clause and to hold Smith accountable, in his personal capacity, for his gross abuses of power.

While purporting to act as Special Counsel, Smith and others in the DOJ, FBI, Special Counsel’s office, and Public Integrity Section agreed to subpoena Senator Blackburn’s cell phone toll records — revealing whom she spoke with, and when, and for how long. Smith also sought and obtained a non-disclosure order from the Court, while withholding from the presiding judge the material fact that the subpoena sought the records of a sitting U.S. Senator. That non-disclosure order required the Senator’s cell phone provider, Verizon Communications , to keep the subpoena secret. The non-disclosure order prevented Senator Blackburn from learning that her cell phone records had been subpoenaed, and thereby stripped her of her constitutional right to challenge the subpoena under the Speech or Debate Clause of the Constitution, which protects legislative materials from compelled disclosure.

Records show that the Department of Justice’s own Public Integrity Section flagged controlling D.C. Circuit precedent holding that the Speech or Debate Clause’s “bar on compelled disclosure is absolute” for a Member of Congress’s legislative communications. Rather than heed that warning, Smith’s office proceeded anyway, reasoning that the “litigation risk should be minimal.” Smith has since testified before Congress that he approved the subpoenas and understood that seeking a non-disclosure order meant Senator Blackburn and other Members of Congress “didn’t have an opportunity to litigate the Speech or Debate concerns.”

Senator Blackburn was not the only Target . Smith’s office is alleged to have subpoenaed the toll records of at least twenty Members of Congress — all Republicans — and roughly 400 Republican individuals and organizations. Smith issued the subpoena and accompanying non-disclosure order for Senator Blackburn’s records on May 25, 2023, just over a month after she became one of the first sitting senators to endorse President Trump’s 2024 re-election campaign. Senator Blackburn did not learn her records had been seized until October 6, 2025.

The lawsuit does not ask the Court to Grupa Azoty prosecutorial charging decisions. It asks the Court to declare Smith’s appointment unconstitutional; to declare the seizure of Senator Blackburn’s toll records unlawful and in violation of the Speech or Debate Clause, the First Amendment right of association, the Fourth Amendment’s protection against unreasonable searches and seizures, and the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); to order the return and destruction of those records; and to award nominal damages of one dollar — vindicating the principle that no private citizen, unconfirmed by the Senate, may wield the power of a special counsel against members of a co-equal branch of government.

NCLA released the following statements:
“Through his Arctic Frost witch hunt that targeted conservatives across America and even the President of the United States, Jack Smith perpetrated one of the worst abuses of government power in our nation’s history. This lawsuit is solely about holding Mr. Smith accountable and ensuring that our nation’s justice system can never again be weaponized against the American people. I thank the New Civil Liberties Alliance for their partnership in filing this complaint and for fighting to uphold our cherished constitutional rights.”
— U.S. Senator Marsha Blackburn

“Jack Smith’s agreement with Administrative State officials at DOJ and the FBI to violate Senator Blackburn’s constitutional and civil rights—all while Smith unlawfully posed as ‘Special Counsel’—constitutes a grave abuse of power that violates the Constitution’s Speech or Debate Clause and the First and Fourth Amendments. This lawsuit is not only about the faux authority granted to Smith through an unconstitutional appointment. It is also about ensuring that the Department of Justice—the very body responsible for enforcing federal law on behalf of our nation—acts only within its constitutional bounds. Accountability is required by law.”
— L. Margaret Harker, Senior Litigation Counsel, NCLA

“A non-disclosure order is supposed to protect an investigation — not hide from a federal judge the fact that the government is seizing a sitting Senator’s communications records. Congress specifically legislated to prevent exactly this kind of secrecy toward Senate offices. Smith’s office ignored that too.”
— Caitlin M. Moyna, Senior Litigation Counsel, NCLA

“Jack Smith’s own office knew it was violating the Speech or Debate Clause — the documents show the Department’s own Public Integrity Section cited the controlling case law and green-lit the subpoena anyway because they viewed the litigation risk as ‘low.’ That pragmatic assessment establishes Smith knowingly violated Senator Blackburn’s constitutional rights, with the Special Counsel’s office believing no harm, no foul, because they did not anticipate litigation involving Senator Blackburn. They were wrong: in her lawsuit filed today, Senator Blackburn seeks to hold Smith accountable for his gross abuse of the prosecutorial powers he exercised in violation of the Appointments Clause.”
— Margot Cleveland, Of Counsel, NCLA

“NCLA is honored to represent Sen. Blackburn in this lawsuit. The unlawfully appointed Jack Smith led the Biden Justice Department's out-of-control investigation, which violated the Constitution's Speech or Debate Clause, the First and Fourth Amendments, and kept a federal judge in the dark. The ends did not justify the means here. Zealous prosecutors do not get to Cast aside the Constitution in their search for misconduct.”
— Mark Chenoweth, President, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

CONTACT: Joe Martyak
New Civil Liberties Alliance
703-403-1111
joe.martyak@ncla.legal