Package to Reopen Government Would Let Senators Sue Over Phone Searches

The package states that the federal government waives sovereign immunity, a principle that often protects federal officers against litigation.

Then-special counsel Jack Smith at the Justice Department in Washington on Aug. 1, 2023. Photo by Alex Wong/Getty Images

Some senators could receive millions of dollars over former special counsel Jack Smith’s accessing of their phone records, under a provision included in the package to reopen the government.

The package states in part that “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 if the violation was committed by an officer, employee, or agent of the United States or of any Federal department or agency.”

Senators who prevail in their claims shall receive $500,000 per violation, or, if greater, the amount of actual damages, as specified in the legislation. They would also be entitled to attorney’s fees and litigation costs.

The FBI obtained data from the phones of at least eight senators, according to a document made public in October.

Those senators, all Republicans, include Sens. Marsha Blackburn (R-Tenn.), Lindsey Graham (R-S.C.), and Cynthia Lummis (R-Wyo.). Smith utilized the data in his investigation into the 2020 presidential election, as stated in his final report.

FBI Director Kash Patel said that the monitoring was baseless, while Attorney General Pam Bondi described the investigation as “an unconstitutional, undemocratic abuse of power.”

Smith said during a public appearance in October that approval is required from the Department of Justice before subpoenaing the records of a member of Congress.

“There’s a number of approvals like that, and those are process things that mean that the person in the special counsel’s role … has to follow those rules, and so there’s a regularity to that,” Smith said at the UCL Global Centre for Democratic Constitutionalism.

“I can’t just do what I want.”

The new package states that the federal government waives sovereign immunity, a principle that often protects federal officers against litigation, when it comes to Senate data.

It does contain exceptions for letting senators sue the government, including if, at the time the data were acquired, the senator was a target of a criminal investigation.

The portion of the package allows for civil actions to be taken for five years after a senator receives notice of a violation.

The document detailing which senators’ data were obtained by the FBI was dated 2023, while senators said they only learned of the development this year.

On Nov. 10, the Senate passed the package, sending it to the House of Representatives. The package would end the government shutdown, which started on Oct. 1.