In a significant move to address concerns over privacy and government oversight, a provision included in the legislative package aimed at preventing a government shutdown has sparked considerable attention. This provision enables senators to file lawsuits if federal law enforcement agencies seize or subpoena their data without prior notification. Should a violation occur, the potential damages could reach $500,000 for each incident.
The language within this new legislation appears to specifically target actions taken by the Justice Department during special counsel Jack Smith's investigation into former President Trump related to the 2020 election. In October, Senate Republicans disclosed an FBI document revealing that the agency had obtained phone record data from eight senators and one congressman for calls made just before and after the events of January 6, 2021, when the Capitol was attacked. These records were collected under a subpoena issued in 2023, while the new legislation addresses alleged violations dating back to 2022.
The revelation that their call records had been accessed infuriated the affected lawmakers, who accused the Biden administration of weaponizing the Justice Department to target Republican figures. GOP Senator Chuck Grassley of Iowa, who chairs the Senate Judiciary Committee, described the FBI's actions as an unconstitutional breach and called for accountability from Attorney General Bondi and Director Patel. Grassley emphasized that the Biden administration's actions could be viewed as more egregious than the infamous Watergate scandal.
According to the FBI document, the agency only collected limited toll records, which detail the participants in a call and its duration but do not include the actual contents of the conversations. In a letter to lawmakers dated October 21, attorneys representing Jack Smith defended the investigative measures as lawful and consistent with established Department of Justice policies. The focus of Smith's investigation included former President Trump’s alleged attempts to pressure senators and representatives into delaying the certification of President Biden's Electoral College victory.
This new legislation mandates that service providers must alert Senate offices and the Senate sergeant at arms if federal law enforcement seeks to access senators' data. Moreover, a court cannot postpone this notification unless the senator is the target of a criminal investigation. The bill explicitly states: “Any Senator whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed in violation of this section may bring a civil action against the United States.”
Senators are entitled to receive up to $500,000 for each violation of the notification provisions, and the government is restricted from using certain types of immunity to defend against these claims. Furthermore, lawsuits can be filed up to five years after a senator becomes aware of a violation, allowing for actions regarding incidents occurring after January 2022.
Given that the FBI analyzed the senators’ call records in 2023, these lawmakers now have the opportunity to file lawsuits under the provisions of the new legislation. The government can counter these lawsuits by asserting that a senator was a target of a criminal investigation and by demonstrating that the notification about the records was delayed due to a court order. Lawmakers whose records were obtained in 2023 include: Senators Lindsey Graham of South Carolina, Bill Hagerty of Tennessee, Josh Hawley of Missouri, Dan Sullivan of Alaska, Tommy Tuberville of Alabama, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming, and Marsha Blackburn of Tennessee, along with Representative Mike Kelly of Pennsylvania.
