Republican sues Jack Smith over 'phone records' subpoena

Republican Sen. Marsha Blackburn (Tenn.) is fighting to make it into the governor's mansion in her state, but she's not leaving without going after former special counsel Jack Smith.

Blackburn, 74, filed a lawsuit on Wednesday against Smith and the Justice Department, alleging that she was harmed by "the grave abuse of authority that this case seeks to rectify."

The 46-page suit makes seven demands

"A declaration that Defendant Smith was unlawfully named and acting as Special Counsel at the U.S. Department of Justice from November 18, 2022 to January 1, 2025, in violation of the Appointments Clause, because he was an attorney from outside the United States Government who was not nominated by the President or confirmed by the Senate—nor was he appointed by the head of a department with legal authority to make such appointments," she demands.

This issue goes back to Judge Aileen Cannon's ruling that Smith was not a legal special counsel because she claimed he was not approved by the U.S. Senate. Until Smith, no special counsels were required to be approved by the U.S. Senate.

Her second demand is "A declaration that Defendant Smith’s collection of Senator Blackburn’s telephone toll records, and those of any other Senators and Members of Congress with whom she was communicating, pursuant to the Arctic Frost investigation and the grand jury subpoena issued in or about May 2023, was unlawful and violated Senator Blackburn’s constitutional and civil rights, including rights afforded by the Constitution’s Speech or Debate Clause, the First Amendment right of association, the Fourth Amendment, and the Civil Rights Act."

Something like this would be such a significant ruling by a U.S. court that it would create a precedent for future congressional records investigations.

Third, Blackburn asks for "An injunction requiring Defendant Smith to destroy any of Senator Blackburn’s legislative materials, or any notes or records reflecting the content of those materials, that are in his possession, custody or control."

Smith testified for the third time on Tuesday that "toll records" do not contain the content. Still, lawmakers appear to believe that the contents of their messages were obtained. Normally, a DOJ special counsel wouldn't personally keep evidence from his investigation in his personal possession. Typically, prosecutors are meant to keep work materials at the DOJ upon leaving.

Blackburn then demands that the judge mandate "An injunction requiring Relief Defendant to return all copies of the toll records to Senator Blackburn and permanently redact any reference to the toll records or the content of the toll records, in its possession, custody, or control."

Fifth, she asks for $1 in damages, though in her sixth demand she asks that all court expenses and lawyers' fees be paid by the DOJ.

There is currently a fund that allows the DOJ to make "settlement agreements" with anyone it sees fit if they launch a lawsuit against the government. Several Jan. 6 attackers have made that move, as have members of President Donald Trump's first campaign. As part of his lawsuit against the IRS, Trump made an agreement with the DOJ that it would create a "fund' for $1.8 billion that would hand out "settlements" to those it wanted, including Trump, his family members, allies, staff or anyone else it wanted. Critics have called it nothing more than a government "slush fund."

Finally, Blackburn said she'll accept any other relief the court deems "just and equitable."