The Senate took another step toward ending the longest government shutdown in American history on Monday night, approving a spending package that would end the standoff. The measure now heads to the Republican-led House, which is expected to take up the legislation on Wednesday.
But as the process moves forward, the public is still learning more about some of the key details that were included in the bill. The New York Times reported, for example, on a provocative provision that GOP members tucked into the package.
A spending package expected to be approved as part of a deal to reopen the government would create a wide legal avenue for senators to sue for as much as half a million dollars each when federal investigators search their phone records without notifying them. The provision … appears to immediately allow for eight G.O.P. senators to sue the government over their phone records being seized in the course of the investigation by Jack Smith, the former special counsel, into the riot at the Capitol on Jan. 6, 2021.
The Times’ report added that this element, which is now likely to become law, would require federal investigators to notify senators about phone records searches, except in instances in which members are themselves a target of an investigation.
The provision “is retroactive to 2022,” the Times noted.
Republican Sen. Ted Cruz of Texas told Politico that it was Senate Majority Leader John Thune himself who made sure this provision was included in the final bill.
For those who might benefit from a refresher, let’s briefly review how we arrived at this point.
It’s been about a month since Senate Judiciary Committee Chair Chuck Grassley, among others, unveiled a brief, unclassified document that he said showed some senators’ cellphone “tolling data” was obtained in 2023 as part of the FBI’s “Arctic Frost” investigation — a precursor to special counsel Jack Smith’s investigation.
The day after the claim reached the public, the Iowa Republican declared that the controversy was “worse than Watergate,” while Republican Sen. Josh Hawley of Missouri spent much of the day claiming that his phone had been “tapped” by the FBI. (He was incorrect.)
Not surprisingly, Donald Trump joined the partisan parade soon after. “Wow! Jack Smith and the Biden DOJ spied on Republican Senators and a least one Republican Congressman,” the president wrote online on Tuesday night. “This is really bad ‘stuff.’ They tried to take down the Republican Party, and got caught!!!”
The truth was, and is, far more anodyne.
The New York Times reported in early October, “The analysis of phone toll records is a common investigative tactic. … Such toll record information does not include the contents of conversations, which would require a court-approved wiretap.”
A related analysis from CNN explained that there was nothing especially surprising about any of this. We already knew that the phone records of some lawmakers were seized in Smith’s probe, because the Justice Department had to overcome legal hurdles posed by the Constitution’s Speech or Debate Clause. And it’s difficult to understand how Smith ever could have conducted such a probe without obtaining some phone records of lawmakers. That’s because Trump’s pressure on lawmakers was a key part of his efforts to overturn the 2020 election. … It would seem very difficult to piece together a case without understanding who was talking to whom, and when. MSNBC’s Ken Dilanian emphasized a related point, noting that the former special counsel’s final report, released earlier this year, made note of these same toll records. Plenty of other independent observers drew a similar conclusion. “It actually seems sort of obvious that if you’re investigating a former president of the United States for trying to subvert an election, you’d probe some of contacts he and alleged co-conspirators had with people he was trying to enlist/pressure to overturn the results,” Politico’s Kyle Cheney noted. Nevertheless, a month of partisan hysterics followed. This week, however, the political pushback took a turn: Senate Republicans are no longer just whining about routine law enforcement tactics, they’re also giving themselves the power to file lawsuits over the faux controversy. The coming litigation is likely to be misguided, but how much taxpayer money ends up in these GOP senators’ pockets remains to be seen. Watch this space. This post updates our related earlier coverage.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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