Why Did Special Prosecutor Jack Smith Make a Ham Sandwich?  Special Counsel Jack Smith delivers remarks on the indictment against former President Donald Trump at the Justice Department on June 9, 2023, in Washington, DC. (pool livestream image) Outrage, the currency of our times, is being minted at a furious rate over Special Counsel Jack Smith’s use of grand jury subpoenas to spy on the telephone metadata records of eight senators and one congressman around the time of the Jan. 6th 2021 assault on the U.S. Capitol. One statement of majestic and appropriate outrage – the gold standard, if you will – came from Sen. Rand Paul (who was not among those surveilled). He wrote in Breitbart: “Our Founding Fathers objected to general warrants that allowed soldiers to go from house to house searching homes of American colonists, [and] I think they would be equally horrified by a government that goes from phone to phone collecting data on all Americans.” Then there is Sen. Lindsey Graham, one of the targets of Smith’s surveillance, who shouted (rhetorically, starting at 2:35) at Attorney General Pam Bondi, “Can you tell me why my phone records, when I’m the Chairman of the Judiciary Committee, were sought by the Jack Smith agents, why did they ask to know who I called and what I was doing from January 4th to the 7th, can you tell me that?” It's a good question. David Corn, writing in the progressive Mother Jones, had his own angle of outrage – that President Trump “incited a violent assault on the Capitol, and for hours – as cops were being beaten and Democratic and Republican legislators were being threatened – did nothing in the hope this domestic terrorism would benefit him and allow him to stay in power … “Should that not have been thoroughly investigated?” Another good question. Here’s our take. Yes, after the trashing of the U.S. Capitol, savage beatings of Capitol police, and the erection of a gallows to “hang Mike Pence,” it would have been astonishing for the government not to investigate. But when the executive branch spies on the metadata of Members of Congress – data that can yield a wealth of private information – you would expect a special prosecutor, appointed by one president to investigate his predecessor and likely future opponent, to dot all “i’s” and cross all “t’s.” Instead of adhering to a strict constitutional standard, Jack Smith predicated his surveillance of U.S. senators and a representative on a subpoena issued by a grand jury. Such a panel, as New York Chief Judge Sol Wachtler famously said, would gladly indict a ham sandwich if that was what the prosecution wanted. In his Breitbart piece, Sen. Paul quotes Chief Justice John Roberts when the Supreme Court held in Carpenter v. United States (2018) that geolocation from cellphone metadata was a privacy interest protected by the Fourth Amendment. Justice Roberts, for the majority, wrote, “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.” Senators, like everyone else, deserve a reasonable expectation that their phone records are private. Of course, senators – also, like everyone else – are not exempt from lawful investigations. But when one branch investigates another – when one political party investigates its opponents – is it too much to ask that the government respect the Fourth Amendment? If Jack Smith had a good reason to surveil nine Members of Congress, he should have made his case for probable cause before a neutral magistrate and obtained a warrant – as the Constitution requires. That Smith instead chose to slather two pieces of bread with mustard and add a slice of ham indicates (mixed metaphor alert) that he was on nothing more than a fishing expedition. When politics intersect with criminal law, prosecutors must adhere to the most rigorous standards. That is in keeping with the character of an exceptional nation. We must not lose it. Comments are closed.
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