Jack Smith Allegedly Concealed Constitutional Obligations from Judge Boasberg to Avoid Revealing Congressional Subpoenas
Source: Margot Cleveland. "Jack Smith Shredded Separation Of Powers In Trump Probe." October 8, 2026. thefederalist.com
The Gist
The author argues that Jack Smith knew from a prior case that courts require special protections before investigators can access congressional communications, but he deliberately avoided telling a later judge about this requirement when seeking phone records from multiple senators—because doing so would have tipped off those senators that they were being investigated. She presents this as evidence that Smith violated separation-of-powers principles and acted in bad faith.
Conclusion
Special Counsel Jack Smith deliberately withheld from Judge Boasberg information that would have triggered required Speech or Debate Clause protections (Rayburn protocols) for subpoenas targeting members of Congress, because he knew compliance would have alerted those senators to the investigation.
Premises
- Internal memoranda show Smith's team was well aware of the D.C. Circuit's Rayburn decision and its requirement that members of Congress be given opportunity to assert Speech or Debate privilege before compelled disclosure.
- Chief Judge Howell had already insisted that Smith's team comply with Rayburn protocols in the Perry case, including for records held by third parties like Google and Apple, when she knew the target was a Member of Congress.
- Despite this known precedent, Smith's team did not consult Judge Boasberg (Howell's successor) before seeking nondisclosure orders for subpoenas targeting other senators' toll records.
- Smith's team abandoned efforts to obtain Senator Ted Cruz's toll records once AT&T raised Speech or Debate concerns, suggesting awareness that such concerns were valid and would be recognized by courts.
- Smith claimed he relied on Public Integrity Section (PIN) concurrence, but that concurrence only addressed 'litigation risk,' not constitutional compliance with Rayburn.
- The pattern of behavior—consulting Judge Howell previously but not Judge Boasberg later—suggests a deliberate strategy to avoid judicial scrutiny that would have required disclosure to the targeted senators.
Assumptions
- That failure to consult Judge Boasberg, absent direct evidence of intent, implies deliberate concealment rather than oversight or differing legal judgment.
- That the Rayburn protocols as applied by Judge Howell to Perry would necessarily have applied identically to the senators' toll records subpoenas.
- That PIN's 'litigation risk' concurrence was an inadequate or improper substitute for direct judicial consultation on constitutional compliance.
- That internal memoranda discussing one congressman's case (Perry) necessarily reflect the special counsel's state of mind regarding later, different subpoenas (senators' toll records).
- That avoiding notification to Congress members constitutes a nefarious motive rather than a legitimate prosecutorial judgment about third-party records (e.g., toll records vs. content).