Jack Smith CLASHES With Mike Lee, Explosive Senate Hearing Over Trump's Secret Phone Record

[0:00] I did not testify that members of Congress were targets of our investigation. [0:05] I did answer questions about toll records, and each question I was asked, I answered truthfully. [0:11] You testified under oath that the information you sought [0:18] for many of your targets, including members of Congress, you sought only toll records. [0:25] Is that correct? [0:25] I did not testify that members of Congress were targets of our investigation. [0:32] I did answer questions about toll records, and each question I was asked, I answered truthfully. [0:39] Okay, but your statement was to the effect that for the records that you requested [0:47] as to cell phones of members of Congress, you were seeking only toll records, did you not? [0:54] No. [0:55] Did you seek more than toll records from members of Congress? [0:59] Uh, the records that we sought were the toll records subpoenas that we talked about. [1:05] There was also, previous to my time as special counsel, a search warrant executed on the telephone [1:12] of a member of Congress, Congressman Scott Perry. [1:15] Uh, in addition to that, we did request, um, records from the White, um, from the National Archives, [1:23] another executive agency regarding White House phones. [1:26] I understand that those White House phones, uh, ended up having... [1:31] Right, um, incidental communications involving some members of Congress. [1:35] Yeah, I get that. [1:35] Uh, uh, by the way, when, when you use the term toll records, just define for us, uh, what you mean. [1:40] Uh, my understanding, uh, of what a toll record gives you is, uh, who placed a call, [1:50] who the call was to, and, uh, the duration of the call. [1:54] That's, that's my understanding of the primary information you get from a toll record subpoena. [1:59] It does not include, for example, the content of the call. [2:04] Okay. [2:05] Now, in December of 2022, um, uh, you and your team, um, sent preservation requests to Apple. [2:15] These are, these are, uh, preservation requests that went not to the telecom providers, uh, you know, [2:20] not to T-Mobile, Verizon, AT&T, but rather to Apple. [2:24] Demanding that Apple preserve the entire contents of targeted phones. [2:30] Everything contained on the targeted phone, on the targeted Apple ID, [2:35] which would include all devices attached to that Apple ID account. [2:39] Uh, this could include information. [2:42] Naturally would, uh, in some circumstances that would cover not just the days, weeks, [2:47] or months and questions, uh, in, in question, but, uh, many years, perhaps a decade or more [2:53] of information. [2:54] You specifically, uh, directed, uh, you and your team, uh, uh, you ordered Apple not to disclose [3:01] the request and to contact you and your team first if the users, uh, were about to be alerted. [3:07] Is that correct? [3:08] I, I don't have a recollection of, uh, specific requests. [3:16] I can say, though, to just to be clear. [3:18] I'm going to hand you two copies of, of these requests. [3:21] Thank you. [3:21] Uh, one in December of 22 and another one, uh, uh, in March of 23, uh, extending the time frame [3:30] and asking for an additional 90 days of that information. [3:33] And, and what I wanted to make clear, Senator, is that a preservation request [3:38] gives a prosecutor no information whatsoever. [3:40] No, I get that. [3:41] I get that. [3:41] It just leaves open the possibility for a request in the future. [3:43] Yes, yes. [3:45] Now, so, uh, with these preservation requests, [3:49] uh, uh, you, you cover a lot more than total records, uh, in the preservation request. [3:55] And, uh, the preservation request requests basically everything on that phone or on that Apple ID. [4:01] Uh, sweeping. [4:03] One question I've got for you is why, uh, make such a broad, uh, preservation request if you intended [4:10] only to seek toll records? [4:11] Do you want me to take the time and read these records now? [4:16] Or do you want me to tell you how I understand this works? [4:18] Well, uh, tell me how you understand it works. The, the part of it that I'm most interested in, [4:23] I believe, appears on the second page of both the December 22 letter and the March of 23 letter. [4:29] Uh, uh, it basically just says send us everything, uh, all documents and all, you know, data on the [4:35] phone in question. So, but tell me why it is that you make such a broad, uh, preservation request if you [4:41] did not intend to get anything beyond toll records. [4:44] Sure. Not having seen these in some time. [4:46] Uh, my understanding is that preservation requests are by their nature broad, [4:51] because when you're early in an investigation, you don't know what will be relevant later on. [4:57] Again, my, my understanding generally as a prosecutor for a number of years is these, uh, [5:03] preservation requests are pretty boilerplate in the sense that prosecutors, uh, request kind of the same [5:09] information, a broad array of information to be, uh, to be preserved. Understood. [5:14] Good. Um, in any, in any case, I, I, I get that. And, and yet these, these, uh, preservation requests [5:23] signed, um, um, by members of your team asked them not to disclose anything about this. Um, I want to get [5:34] back for a moment, uh, to subpoenas that actually, uh, were issued and then I'll circle back to the gag orders [5:43] in a moment. Um, the speech and debate clause of article one, section six, clause one should factor [5:51] in to some of these, um, uh, in so far as you are, you and your team are looking into communications [6:01] of individual members, officers of a coordinate branch of government here, the legislative branch, [6:06] members of the house and of the Senate. And it's there to, uh, give them a type of privilege as to [6:13] their internal deliberative processes involving their legislative actions, um, including things like, [6:22] uh, Congress's obligation to open and count electoral votes. Um, now on this and, and matters broadly, [6:30] the department of justice's own public integrity section, uh, it did give you explicit warnings [6:36] that going after the phone records of, uh, members of the legislative branch carried what they referred [6:42] to as litigation risks due to these constitutional privileges. Yet with your express approval, your [6:49] approval, your office issued 44 subpoenas that were wrapped in very strict gag orders. At least 19 of [6:58] those targets were in fact officers of a coordinate branch of government that that is the legislative branch. [7:04] Now, Chief Judge Bo Boesberg of the U.S. District Court for the District of Columbia signed those gag orders. [7:10] But as you admitted on page 42 of your deposition, uh, before the House Judiciary Committee, [7:18] you never actually told Chief Judge Boesberg that you were targeting 19 members of a coordinate [7:25] branch of government, the legislative branch. Is that right? Uh, are we speaking about the toll records? [7:32] No. Well, yeah, we're talking about the subpoenas that were signed by Chief Judge Boesberg involving the [7:38] toll records. Yes. I think Judge Boesberg didn't sign the subpoenas. I think he signed off on the [7:44] non-disclosure order that went with the subpoenas. But you are correct in that my recollection is that, [7:50] uh, pursuant to department policy, we did not share with him, uh, who the underlying toll records, [7:57] um, were for at that time. I think that's correct. Okay. Now, this highlights and underscores something [8:02] that my friend and colleague, uh, uh, Senator Coons, um, uh, a reference. Uh, he and I have a bill, [8:10] a bipartisan bill called the NDO Fairness Act. It seeks to guarantee, as the name implies, fairness [8:17] and non-disclosure orders issued by courts. There should be an articulated basis for secrecy when you're [8:23] asking for a gag order. Now that, that bill has been passed unanimously by the House of [8:29] Representatives. The Senate has yes to pass it. The Senate needs to pass it. It must pass it. [8:34] But even without that passive, obviously it's not law now, and it wasn't law in December of 2022 or [8:40] around 2023 or at any, any point, but still the speech or debate clause of article one, section six [8:50] was intact and has been since 1789 when the constitution was ratified. Shouldn't that play [8:56] some role here? And doesn't that, uh, shouldn't that have, um, uh, been more carefully considered [9:05] as you were seeking these records involving members of a coordinate branch of government, [9:11] the legislative branch, when you were seeking these, uh, these documents? [9:14] Uh, when we requested the toll records subpoenas, uh, I had staff who were familiar with the speech [9:23] or debate clause. They, uh, uh, litigated issues related to it. Uh, we also, I made it a condition of [9:30] getting these subpoenas that the public integrity section, which is familiar with these issues [9:34] be consulted. Uh, my recollection is that they approved of the subpoenas and, um, as a result of [9:43] that, that is why we sought the subpoenas. So in my view, uh, we did consider these issues with respect [9:49] to the bill you mentioned. I'm not familiar with that as a prosecutor. My job is to follow the law and [9:56] department regulations as they exist. I get it. My point is to make the case for this, [10:00] but I want to make sure that I understand. Do you define toll records to include geolocation data? [10:06] Uh, I would have to look at the subpoena. My, my, uh, understanding of what was most relevant to us [10:15] would be the, uh, to and from and duration. Uh, I haven't looked at one of those subpoenas in a long time. [10:24] Again, like the, um, preservation requests, I think the, the, uh, information requested is pretty [10:32] standard in those subpoenas. Um, I'm just not, I don't recall as I sit here whether there are other [10:37] things. What I focused on was the two from and and I get it and I'm, I'm, I'm out of time. Uh, my, [10:43] my point is this even without that bill and the old fairness becoming law, it's not yet law needs to [10:48] become law. There still were all kinds of limitations, even separate and apart from the [10:54] speech or debate clause, uh, uh, uh, a Supreme Court precedent involving, uh, uh, Jones Carpenter, [11:00] more recently Chowtri recognizes that, uh, the fourth amendment, especially insofar as you're seeking [11:07] things like geolocation data, you can get such an exquisite view into someone's life by tracking them [11:16] that the, uh, if when you request it this way with new technology, that implicates the fourth [11:22] amendment in a very direct way, in a very direct way that often requires compliance, not only with [11:29] the fourth amendment's, uh, uh, probable cause requirement, but also with the particularity [11:34] requirement. The American revolution was fought and won because of the flagrant abuse by the crown [11:40] and parliament, uh, of those privacy protections, which, uh, have their origins in many centuries [11:47] of, uh, uh, Anglo-American legal precedent and tradition prior to the American revolution, [11:52] prior to the constitution. You trampled on those, sir. And you did so in a way that arguably makes [11:58] what Richard Nixon did in Watergate look like a Sunday picnic. Thank you. [12:03] Subscribe to one India and never miss an update. Download the one India app now.