Sen. Marsha Blackburn Sues Former Special Counsel Jack Smith

Sen. Marsha Blackburn (R-Tenn.) on Wednesday sued former special counsel Jack Smith and the Department of Justice (DOJ) over a subpoena Smith’s office issued for her phone records during his investigation of President Donald Trump’s actions around Congress’s certification of the 2020 election.

Blackburn alleged Smith violated her constitutional rights and was unlawfully appointed. She asked the U.S. District Court for the Middle District of Tennessee to order the Justice Department to destroy the records or return them.

The senator opened her lawsuit with the quote: “The prosecutor has more control over life, liberty, and reputation than any other person in America,” from former attorney general and later Supreme Court justice Robert Jackson.

Blackburn claimed that Smith violated her First Amendment right of association and Fourth Amendment right against unreasonable searches and seizures.

She accused the former special counsel of violating the Speech or Debate Clause in the Constitution, which provides members of Congress and their aides with immunity from criminal prosecutions or civil suits stemming from their actions taken within their official duties.

The Supreme Court has previously said this legislation must not be interpreted literally but instead be construed broadly to accomplish the proper separation of powers it intends to make.

Blackburn also claimed former Attorney General Merrick Garland unlawfully appointed Smith, a private citizen, to special counsel, serving in that role from November 2022 to January 2025, in violation of the Appointments Clause, which gives authority to the president to name federal officials subject to the advice and consent of the Senate.

Blackburn said she never had the chance, as a senator, to offer her advice, consent, or rejection of Smith’s appointment.

Furthermore, the Tennessee senator said Smith and the DOJ’s actions in obtaining her phone records violated the constitutional provision of separation of powers.

“The facts alleged herein demonstrate that the Executive Branch ignored our Constitution’s carefully constructed design and allowed a private citizen to wield enormous power that did not belong to him, resulting in egregious violations of personal liberty and constitutional rights,” Blackburn’s suit read.

Garland named Smith as special counsel to investigate the events leading up to Congress’s joint session on Jan. 6, 2021, for certifying electoral votes from the 2020 presidential election. Smith alleged that Trump, who lost that election, was behind a suspected conspiracy to overturn the results. Trump said he was seeking to delay the certification in order to give states time to investigate claims of fraud and irregularities.

Trump was charged by a grand jury as a result of Smith’s investigation and pleaded not guilty, but the charges were eventually dropped after he won the 2024 presidential election.

Blackburn says in the lawsuit that she seeks to prevent any future attorney general from making any “fictitious” appointment as Garland did for Smith.

“No president appointed him, nor did Congress confirm him to serve in that role,” the lawsuit read. “Congress did not pass any law that authorized Attorney General Garland to appoint a Special Counsel.”

The senator requested nominal damages from Smith in the amount of $1.

As part of the former special counsel’s investigation into Trump, which was codenamed “Arctic Frost,” Smith issued subpoenas for toll records for Blackburn’s phone she used for legislative purposes. The investigation served as “the vehicle” for Smith to conspire and violate Blackburn’s rights, the lawsuit alleged, along with the rights of other Republican lawmakers and Trump supporters.

“Given what had happened that afternoon [on] Jan. 6, in my view, added to the powerful evidence we had of Donald Trump’s guilt, and the participation of his co-conspirators in his criminal scheme at his behest,” Smith said.

In addition to Blackburn, Smith subpoenaed and received records from Ron Johnson (R-Wis.), Lindsey Graham (R-S.C.), Bill Hagerty (R-Tenn.), Josh Hawley (R-Mo.), Cynthia Lummis (R-Wyo.), Dan Sullivan (R-Alaska), and Tommy Tuberville (R-Ala.), and Rep. Mike Kelly (R-Pa.).

Smith also had obtained nondisclosure orders from a federal district judge that prevented the lawmakers from knowing that their phone records were being investigated.

The former special counsel maintained during testimony that his investigation showed Trump “engaged in a criminal scheme to overturn the results and prevent the lawful transfer of power.”

Smith could not be reached for comment at the time of publication.