Sen. Graham Blocks House Bid to Overturn Law Allowing Senators to Sue DOJ

The provision allowed US senators to personally recover a minimum of $500,000 for each time their data was subpoenaed in violation of the law.

Sen. Lindsey Graham (R-S.C.) speaks at a press conference in Tel Aviv, Israel, on Feb. 17, 2025. Amir Levy/Getty Images

U.S. Senator Lindsey Graham (R-S.C.) on Nov. 20 denied unanimous consent to pass legislation that would repeal a controversial provision of the government funding law enacted on Nov. 12, which allows U.S. senators to potentially collect millions of dollars in taxpayer-funded legal damages.

The provision in question was inserted by the Senate into the Continuing Appropriations Act of 2026, and allows senators “whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed” in violation of the law, to sue the United States and personally recover a minimum of $500,000 per violation in damages.

The provision was inserted into the act without prior knowledge of the House of Representatives, which universally condemned the measure.

The act passed because of the urgent need to restore government funding.

The House’s bill to repeal this provision of the funding law was passed unanimously, by a vote of 426 yeas to 0 nays, on Nov. 19.

When presented to the Senate, Sen. Martin Heinrich (D-N.M.) rose on Nov. 20 to move that the bill be passed by unanimous consent—a common practice where opponents are notified in advance and are present to object, making the outcome foregone before the attempt is made.

To this, Graham objected and defended the provision, stating that it was necessary to avoid alleged abuses by the executive branch of its surveillance authorities.

“What did I do to allow the government to seize my personal phone and seize my official phone, when I was Senate Judiciary Chairman?

“Jack Smith [issued] a subpoena for the phone records of a branch of government, the Senate, that had to decide whether to certify the [2020] election,” said Graham on the Senate floor in remarks preceding his objection.

He was referring to the now-concluded criminal investigation by the U.S. Department of Justice into President Donald Trump’s efforts to overturn the results of the 2020 presidential election.

Recent disclosures about that investigation revealed the department had subpoenaed the phone records of several U.S. Senators who were allies of Trump, to ascertain information about Trump’s efforts to overturn the election results.

Senate Republicans allege that such subpoenas were unlawfully issued.

“We’re not going to let the Democratic Party decide my fate. We’re going to let a judge decide my fate, but I have to get it in court and prove my case,” Graham added.

“All of us who were wronged need to have a remedy.”

Graham has said that he intends to sue the United States for “tens of millions” of dollars as a result of the provision.

Heinrich responded sharply to Graham’s remarks.

“We should work with our colleagues in the House to address the underlying issue of protecting members without the outrageous damage provisions that were retroactively put into this statute,” remarked Heinrich after Graham had finished speaking.

“[The] terrible wrong that occurred last week is simply outrageous,” said Sen. Gary Peters (D-Mich.) in remarks on the floor after Heinrich.

The leadership of both parties’ caucuses in the House has been adamant to repeal the provision.

“I was very angry about it, and a lot of my members called me ... many of them are very angry about that,” said House Speaker Mike Johnson (R-La.) in remarks to the press on Nov. 12.

No equivalent provision for damages exists for members of the House of Representatives.

The bill can still be passed by the Senate on a roll call vote, though it will need the support of 60 senators to advance to final passage.