​Guess Who Wasn’t Included in the Hearing on Jack Smith’s Surveillance of Congress?

Former U.S. special counsel Jack Smith

In a word: You.

Allow us to explain.

On Tuesday, Jack Smith, the former special counsel who investigated Donald Trump for possible crimes connected to the January 6 riots and the mishandling of classified information, was grilled before the Senate Judiciary Committee. At issue was Smith’s decision to subpoena the call records of eight senators and one congressman.

Judiciary Committee Chairman Chuck Grassley revealed in July that Smith’s office also subpoenaed the National Archives and Records Administration to provide the text messages and toll records of 44 Members of Congress from both parties for a period covering almost four months.

We’ve long complained about Smith’s reliance on grand jury subpoenas instead of probable-cause warrants that a judge would scrutinize for their constitutional implications. Judicial scrutiny would surely have evaluated Sen. John Kennedy’s (R-LA) claim that the surveillance of Members’ metadata was a blatant violation of the Constitution’s Speech and Debate Clause, which immunizes Members from being questioned about their legislative acts.

Senators and representatives are understandably incensed about being spied upon. But it bears saying that what happened to them happens all the time to many of us who are not protected by a special clause in the Constitution.

Every year, tens of thousands of Americans have their communications records scrutinized by the government without ever learning that their private records have been searched.

The bipartisan NDO Fairness Act, which passed the House for the third time in August, offers a practical and overdue reform of a surveillance practice that has grown out of control.

This legislation would place meaningful limits on the government’s use of non-disclosure orders (NDOs) – the gag orders often served alongside warrants compelling technology companies and cloud providers to hand over data without telling their customers. These orders can prevent Americans from learning that the government has accessed their emails, files, messages, or other digital records.

Unlike the senators and representatives, these Americans never learn that the government has snooped into their most sensitive personal information – including communications about their health, financial transactions, and personal relationships.

The NDO Fairness Act would require the government to notify people whose accounts have been surveilled within 90 days. Judges could extend these non-disclosure orders based on written, fact-based justifications provided by prosecutors, replacing the current practice of simply issuing and extending boilerplate gag orders.

Tuesday’s hearing was highly partisan and contentious, with one senator calling Smith a “dirt bag.” At a time when public approval of Congress is low – just 10 percent, according to Gallup – why not do something popular for the people?

In its reporting on the hearing, Politico noted a “bipartisan moment” of the hearing: a pitch by Sens. Mike Lee (R-UT) and Chris Coons (D-DE) for the NDO Fairness Act.

These senators realize that now would be a smart time for the Senate to follow the House’s example and pass the NDO Fairness Act. It would be a welcome reform, arriving just in time for the election.

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