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US House votes to cancel big payouts for senators’ ‘Arctic Frost’ phone subpoenas
WASHINGTON — The U.S. House approved legislation Wednesday that would revoke part of a law Congress approved just last week, which for the first time allows senators to sue the federal government, potentially for millions of dollars, if their data is subpoenaed without their knowledge.
The 426-0 vote sent the bill to the Senate, where Majority Leader John Thune, R-S.D., doesn’t appear inclined to put the measure on the floor for a vote, though he hasn’t entirely ruled it out.
“You have an independent, co-equal branch of the government whose members were, through illegal means, having their phone records acquired, spied on if you will, through a weaponized Biden Justice Department,” Thune said. “That, to me, demands some accountability.”
Thune said he understands why several Republican senators were frustrated they didn’t know the provision was added to the funding package that ended the government shutdown.
“I take that as a legitimate criticism in terms of the process,” Thune said. “But I think, on the substance, I believe that you need to have some sort of accountability and consequence for that kind of weaponization against a co-equal branch of the government.”
Thune declined to say if he thinks it’s appropriate for senators to sue for millions in taxpayer dollars for having their phone call records pulled as part of the investigation into President Donald Trump’s efforts to overturn the 2020 presidential election.
“I don’t think there’s anybody that was targeted for whom the money matters,” Thune said. “I think it’s more about the principle.”
GOP Sen. Lindsey Graham of South Carolina, one of eight senators who could benefit, said shortly after the House wrapped up debate he plans to sue Verizon as well as the Department of Justice under the new provision.
“The subpoena that was issued, I think, was fatally flawed. The judicial order saying if you told me (about the subpoena) I would tamper with witnesses or tamper with evidence is legally offensive,” Graham said. “I’m not going to take this crap anymore. I am going into court, and we’ll see what happens.”
Dispute among Republicans
Senate Republicans’ decision to include the lawsuit provision in the stopgap spending law that ended the 43-day government shutdown represented a rare public break between GOP congressional leaders.
Speaker Mike Johnson, R-La., said last week just after the House passed the funding law he was “very angry” the lawsuit language was added to the package without his knowledge or sign off.
“I think that was way out of line. I don’t think that was the smart thing to do. I don’t think that was the right thing to do,” Johnson said at the time. “And the House is going to reverse it. We’re going to repeal that. And I’m going to expect our colleagues in the Senate to do the same thing.”
The provision, which will remain in effect unless the Senate passes the new bill and Trump signs it, allows senators who had their cell phone or other data subpoenaed without their knowledge to sue the federal government for $500,000 “for each instance of a violation.”
The language is retroactive until Jan. 1, 2022, and allows the eight senators who had their cell phone call logs subpoenaed as part of the FBI’s 2023 investigation into efforts to overturn the 2020 election to sue for millions of dollars.
The FBI reportedly obtained data for cell phone use between Jan. 4 and Jan. 7, 2021, for Graham and Sens. Marsha Blackburn and Bill Hagerty of Tennessee, Josh Hawley of Missouri, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming, Dan Sullivan of Alaska and Tommy Tuberville of Alabama, as well as Pennsylvania Rep. Mike Kelly. All are Republicans.
The law allows judges to delay notification for 60 days if the information was pulled as part of a criminal investigation and if telling the senator would endanger someone’s safety or life, lead the lawmaker to flee prosecution, result in someone tampering with or destroying evidence, lead to witness intimidation, place the investigation in jeopardy, or unduly delay the trial.
A judge could keep renewing that 60-day notification delay in criminal investigations if one or several of those elements continued to exist.
Both parties object
House debate on the two-page bill sponsored by Georgia GOP Rep. Austin Scott was broadly bipartisan, though Democrats and Republicans expressed frustration with the lawsuit language for different reasons.
Administration Committee Chairman Bryan Steil, R-Wis., said the “troubling provision” in the spending law must be stricken.
“These provisions are not the right path to address the true concerns over the separation of powers,” Steil said. “Remember, Congress serves the American people, not the other way around.”
Steil said the FBI pulling cell phone call records for senators as part of its investigation into efforts to overturn the 2020 election, known as Operation Arctic Frost, was an abuse of power that should be addressed. But he said allowing senators to sue for millions of dollars in taxpayer money was the wrong way to do that.
“I’m committed to holding those involved accountable. No one benefited by the failures of the Biden administration,” Steil said. “However, that does not mean that elected officials should be financially benefiting from those failures now.”
New York Rep. Joe Morelle, ranking Democrat on the committee, said those eight senators’ cell phone logs were pulled because FBI agents believed the lawmakers “had knowledge of or even participated in efforts to overturn the 2020 presidential election. Efforts that culminated in a violent attack on this very institution.”
Morelle said anyone with a basic understanding of criminal investigations knows that phone records “are among the most routine tools used” to gain a better understanding of events.
“They do not reveal the content of any conversations. They simply show which numbers were called, which numbers called them and when those calls were made,” Morelle said.
“If these Republican senators genuinely believe that their civil liberties were violated or if they are interested in changing the law relating to subpoenas, then they are better positioned than literally anyone on planet Earth to hold hearings, draft legislation and debate proposed changes in the open,” Morelle added. “But that’s not what this is all about. This is about ensuring the law applies to every other American, just not to them.”
Scott said House Republicans voted for the spending law to end the government shutdown, not because they supported the lawsuit provision, which he called “the most self-centered, self-serving piece of language that I have ever seen in any piece of legislation.”
He also rebuked Sen. Graham for saying during interviews that he plans to sue the federal government.
“We have one senator, one, who maintains that this provision is good and is currently saying that he is going to sue for tens of millions of dollars,” Scott said. “I believe my side did the right thing in voting to open up the government. There are a select few people that did the wrong thing in putting language in the bill that would make themselves individually wealthy.”
Bombs, cows, the Postal Service and lawsuits
Graham, who was an Air Force Judge Advocate General officer before entering politics, compared having his cell phone data pulled as part of the investigation to a case he handled earlier in his career after the Air Force “dropped a bomb on a guy’s barn and killed his cow. And he was able to make a claim.”
Graham also compared it to someone suing the government after being hit by a U.S. Postal Service truck, when asked by a reporter what he plans to do with the millions of dollars he will likely receive if he were to win the case.
“You do whatever you want to do with the money if you’ve been wronged,” Graham said.
In addition to filing a lawsuit, Graham hopes to broaden the language so that organizations and private individuals can file suit against the government under the Federal Tort Claims Act if they feel they’ve been wronged similarly.
“I will insist on a vote in the United States Senate to expand the ability of people to make claims that may have been harmed,” Graham said, adding that would likely include the Republican Attorneys General Association, the Republican National Committee and Turning Point USA.
Graham rejected criticisms of the lawsuit provision from fellow GOP lawmakers, saying it doesn’t represent “self-dealing.”
“I understand politics, but I’m not worried about that. I’m worried about getting the right outcome,” Graham said. “I mean, if you don’t want me to sue the government, that’s up to you. I’m going to sue, whether you like it or not. I’m not going to put up with this anymore, and people in my spot shouldn’t have to deal with this in the future.”
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House votes to undo law allowing senators to sue over Jan. 6 subpoenas
The House voted unanimously Wednesday night to repeal a provision that Congress passed last week that allows senators to sue the federal government for seizing their phone records — but the repeal effort faces an uncertain future in the Senate.
The provision in the law that ended the government shutdown allows senators to sue the Justice Department for seizing or issuing subpoenas for their data without notifying them, as long as they are not the targets of a criminal investigation. The law specifies that senators can receive $500,000 in potential damages for each violation, in addition to legal fees. It does not apply to House members.
The language was drafted in response to special counsel Jack Smith’s investigation into President Donald Trump’s involvement in the Jan. 6, 2021, attack on the Capitol. The FBI obtained phone data from at least eight senators and one House member from the days before and after the attack, according to an FBI document released by Senate Republicans last month.
The provision took House members — and many senators — by surprise last week and prompted intense backlash from lawmakers of both parties, who criticized it as “self-dealing.” It briefly seemed to jeopardize the effort to reopen the government, as some House Republicans threatened to withhold their vote until it could be changed. House Speaker Mike Johnson (R-Louisiana) said he was angry about the provision and pledged to fast-track a vote to repeal it.
Rep. Austin Scott (R-Georgia) sponsored the legislation to repeal the provision. He argued on the House floor Wednesday that Congress was given a choice whether to reopen the government “and I’m glad we ended the chaos.”
“But there’s a provision in this bill that in my time in office, I believe is probably the most self-centered, self-serving piece of language I have ever seen in any piece of legislation,” he said.
Democrats also derided the measure as a scheme for senators to make money off American taxpayers and slammed their Republican colleagues for supporting the bill to fund the government last week despite the provision. (Six House Democrats also voted for the bill.)
“Under no circumstances should the power entrusted to us as members of Congress be used to line our own pockets,” said Rep. Joe Morelle (New York), the top Democrat on the House Administration Committee. “Anyone who voted for this appalling provision, including all but two House Republicans just last week, should be ashamed of themselves.”
Despite the overwhelming support for reversing the provision in the House, there’s little indication that the Senate will take it up soon — at least without rewriting it.
The measure was a last-minute addition to the bill to end the shutdown negotiated by Senate Majority Leader John Thune (R-South Dakota) and Senate Minority Leader Charles E. Schumer (D-New York), each of whom said later said they were seeking to protect senators from abuse of federal investigative powers by presidents of the other party.
Thune has not said whether the Senate will take up the bill if it passes the House. But he has defended the provision, even as he acknowledged some senators were frustrated they weren’t told about it earlier.
“I take that as a legitimate criticism in terms of the process,” Thune told reporters Wednesday. “But I think on the substance, I believe that you need to have some sort of accountability and consequence for that kind of weaponization against a coequal, independent branch of the government.”
Schumer said Thune had pushed for the measure and that he would support repealing it. But he added that he persuaded Thune to write the provision in a way that allowed senators to sue the Justice Department going forward as well as retroactively — so it didn’t only apply to the Jan. 6 investigation.
“We wanted to make sure that at least Democratic senators were protected from Bondi and others who might go after them,” Schumer told reporters Tuesday, referring to Attorney General Pam Bondi.
Senate Republicans discussed how to handle the bill during a closed-door lunch Wednesday but emerged without a consensus.
Most of the senators whose phone records were collected by the FBI in the Jan. 6 investigation have said they don’t plan to sue under the provision.
Sen. Rick Scott (R-Florida), who has said his records were collected as a part of the Smith investigation, said he would support the House repeal bill.
“I give away my salary, so it’s not like I need to make any money off government,” said Scott, a former health care executive who is one of the richest members of the Senate.
Sen. Josh Hawley (R-Missouri) said in a statement that the Senate provision is “a bad idea.”
“There needs to be accountability for the Biden [Justice Department]’s outrageous abuse of the separation of powers, but the right way to do that is through public hearings, tough oversight, including of the complicit telecomm companies, and prosecution where warranted,” he said.
But Sen. Lindsey Graham (R-South Carolina), whose records were also collected during the investigation into the attack on the Capitol, has emerged as the bill’s most vocal defender.
He said he favors revising the provision to allow House members and others to sue in addition to senators.
“I think there’s a general belief that we probably need to rewrite it and expand it to deal with other groups so that other people can have their day in court,” Graham said.
He said he plans to sue the Justice Department as well as Verizon, which he said turned over his phone records improperly.
“This is not about the money as much as it is about making sure it doesn’t happen again,” Graham told reporters Wednesday.
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