Congressional Republicans have spent years claiming the federal government has been “weaponized” against their side. They’ve regularly done this by making hyperbolic claims that went well beyond the available evidence.
It’s happening yet again.
We learned Monday that special counsel Jack Smith had obtained the phone records of nine congressional Republicans as part of his January 6, 2021, investigation.
Republicans quickly raised this as proof positive of a Watergate-esque conspiracy against them.
A few key points:
The GOP is exaggerating the evidence
The news was greeted almost instantly with Republican claims and suggestions of a vast government conspiracy.
Sen. Chuck Grassley of Iowa claimed it amounted to the Justice Department under President Joe Biden having “spied” on Republicans.
“BIDEN FBI WEAPONIZATION = WORSE THAN WATERGATE,” Grassley posted on X.
FBI Director Kash Patel declared it “proof” that the records were “seized for political purposes.”
President Donald Trump said Smith “got caught with his hand in the cookie jar.”
And Republicans made it a focal point of a hearing Tuesday featuring Attorney General Pam Bondi. Sen. Josh Hawley of Missouri went so far at the hearing as to claim the FBI had “tapped my phone.”
“Tapped my phone. Tapped Lindsey Graham’s phone. Tapped Marsha Blackburn’s phone. Tapped five other phones of United States senators,” Hawley said at the hearing. “Gee, it sure looks like targeting political opponents to me.”
The first thing to note is that the evidence doesn’t show any phones were “tapped.” It shows the FBI obtained court orders for phone records – i.e. call logs. This is not the same as the government listening in to the content of the phone conversations.
(When a journalist pointed that out Tuesday, Hawley responded by suggesting that the call log information was basically equivalent to phone-tapping.)
Nor does the evidence fit what is traditionally understood to constitute “spying.” (Trump has regularly exaggerated the evidence to claim the Obama DOJ “spied” on his 2016 campaign.)
It’s also not surprising. 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.
Two of the lawmakers on the list, for example, had some known proximity to the so-called fake electors effort: Sen. Ron Johnson of Wisconsin and Rep. Mike Kelly of Pennsylvania.
We also know from Smith’s report and evidence uncovered by the House January 6 committee that Trump had been reaching out to lawmakers and instructing staff to do the same.
It would seem very difficult to piece together a case without understanding who was talking to whom, and when. The request from the special counsel for records covered the period from January 4 to January 8, 2021 – a key time when lawmakers were being pressed over Trump’s effort to hold on to power. And importantly, there’s no indication from what has been released that the lawmakers themselves were the target of any investigation; there’s only evidence that investigators wanted to understand their interactions with others.
As usual with these claims, it basically comes down to whether you believe the investigation itself was well-founded to begin with.
Smith wound up using his evidence to indict Trump in a case that would have gotten a full airing in court, if it hadn’t been preempted by Trump winning the 2024 election. Many GOP senators also criticized Trump’s efforts to overturn the election, and seven voted to convict him at his impeachment trial – whether or not they thought it was criminal.
There is also no evidence, as Patel claimed, that this proves the phone records were “seized for political purposes.” The records were seized as part of an investigation that actually led to charges.
Trump’s DOJ also obtained Democratic lawmakers’ phone records
If you were tuning in to this issue early this week, you might be under the impression that this was an unprecedented breach of the lines between the executive and legislative branches.
In fact, it is not. The Trump Justice Department actually did it before.
During Trump’s first term, it obtained the phone records of Democratic lawmakers as part of its leak investigations. The administration back then hunted for sources behind media reports about the Russia investigation, with Trump often calling for the leaks to be rooted out.
CNN has reported the lawmakers were then-House Intelligence Committee members Eric Swalwell and Adam Schiff, both of California. (Schiff is now a senator.)
The situation was first reported in 2021. And late last year, Justice Department inspector general Michael Horowitz weighed in with a report. He found the DOJ secretly obtained the phone records of two members of Congress (apparently Schiff and Swalwell), as well as 43 staffers.
(One of those staffers, sources have told CNN, was apparently Patel, who was then a House GOP aide.)
Swalwell on Thursday responded to Republicans’ decrying Smith’s move by asking many of them why they didn’t object to his own phone records being subpoenaed by Trump’s DOJ.
Horowitz’s inspector general report was still available on the DOJ’s website as recently as June 2025, according to the Wayback Machine, but it is no longer posted.
The Trump DOJ’s pursuit of these lawmakers’ phone records was apparently objectionable enough that Trump’s former attorney general, Bill Barr, back in 2021 distanced himself from it.
It is dicey, and a lot depends on the circumstances
And that gets at the key issue here. It is indeed no small matter for the Justice Department to subpoena the communications records of lawmakers or their aides, implicating significant constitutional questions.
As Horowitz wrote in his report last year, it “risks chilling Congress’s ability to conduct oversight of the executive branch.” He also said it could create, “at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch.”
But what happens when there is actually some potentially illegal activity? Do you potentially hamstring the investigation by exempting key evidence if it might come from a lawmaker’s phone records? What if that lawmaker might have participated in a crime? That does happen. Democratic Sen. Bob Menendez, for example, had his home searched by the Biden administration as part of an investigation that began in Trump’s first term. He was ultimately convicted of bribery and corruption charges and sentenced to 11 years in prison earlier this year.
It’s a balancing act.
The leak investigations notably did not lead to criminal charges, unlike Smith’s January 6 investigation.
These are difficult issues, and they’re highly dependent on the details.
We know very little of those details when it comes to why Smith sought the records of these lawmakers, specifically. Without that, it’s impossible to reach conclusions about whether it might have been warranted. And we certainly don’t have evidence that it was done for political purposes.
But waiting for that information isn’t politically expedient. So yet again, we’re seeing lawmakers leap to conclusions.