Jack Smith Sought to Expand J6 Conspiracy Case

Disclosures that the special counsel sought the cell phone data of nine Republicans in Congress demonstrate Smith was hoping to expand his J6 criminal case before the 2024 presidential election.

Republicans are demanding a full investigation, possibly the appointment of a special counsel, to find out why Special Counsel Jack Smith sought the cell phone records of eight U.S. Senators and one Republican Congressman in 2023.

I mocked the outrage here for my paid subscribers earlier this week: targeted senators continue to give indignant performances on cable news shows and brought some of their theatrics to the Senate on Tuesday during a hearing with Attorney General Pam Bondi.

But pearl clutching Republican lawmakers—who did nothing to shut down Smith’s $50 million witch hunt against the president and everyone around him—are missing the point; the scandal represents far more than a violation of their privacy rights, as some have claimed, or even a breach of Constitutional protections under the Speech or Debate Clause.

The real scandal is that Smith sought the records as a basis to widen his conspiracy investigation to ultimately ensnare top Trump associates and perhaps members of Congress leading up to the 2024 election and beyond had Kamala Harris won the presidency.

First, it is important to revisit the original indictment announced by Smith in August 2023. A D.C. grand jury indicted the president on four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against rights.

The conspiracy, according to Smith, was to “overturn the results of the 2020 presidential election.” Six unnamed co-conspirators were cited in the indictment but are believed to be in order: Rudy Giuliani, Dr. John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro. (Co-conspirator #6, a “political consultant,” has not been definitively identified.)

A conspiracy, however, requires at least two people so Smith needed to add another defendant to the case—and J6-related documents provide a clue as to whom Smith was targeting: Rudy Giuliani, co-conspirator #1.

Going After Rudy

In the indictment, Smith described Giuliani as “an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not.”

In his final report detailing the case that never went to trial, Smith determined the former New York mayor had “call[ed] Members of Congress and attempt[ed] to enlist them to further delay the certification” on the evening of Jan 6 after the protest ended and business returned to normal.

The January 6 Select Committee report provides even more specifics suggesting Giuliani was Smith’s next target. In a detailed timeline of Jan 6, the committee repeatedly highlighted Giuliani’s communications with both the president and others as Congress prepared to reconvene and continue the certification proceedings. “Rudolph Giuliani tried calling numerous Members of Congress in the hour before the joint session resumed, including Rep. Jim Jordan (R–OH) and Senators Marsha Blackburn (R–TN), Tommy Tuberville (R–AL), Bill Hagerty (R–TN), Lindsey Graham (R–SC), Josh Hawley (R–MO), and Ted Cruz (R–TX). Giuliani had two calls with Senator Dan Sullivan over the course of the evening.”

Senators Blackburn, Tuberville, Hagerty, Graham, Sullivan and Hawley were part of Smith’s subpoena for cell phone activity from Jan 4 to Jan 7. (It is unclear why Smith included Wyoming Senator Cynthia Lummis, who had just been sworn in a few days before Jan 6.)

So it appears Smith was circling Giuliani in an attempt to bring a superseding indictment against the president, which would have added the former mayor as a co-defendant and perhaps more charges against both—but the special counsel hit a roadblock. A few months after the FBI received the cell phone records in late September 2023 while Smith presumably was building the case against Giuliani, the Jan 6 case in Washington came to a halt.

Pending the appeal of Judge Tanya Chutkan’s Dec 2023 order denying the president all forms of immunity from prosecution, the proceedings were “held in abeyance.” That prevented Smith and his team from filing any new motions including indictments in the case.

Smith to SCOTUS: Help Me

So he went straight to the top for relief. Smith asked the Supreme Court to take up the question of presidential immunity immediately and circumvent the D.C. appellate court, which would have been the next step.

“The United States recognizes that this is an extraordinary request. This is an extraordinary case. The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”

Meaning—before the election was in full swing.

The Supreme Court rejected his attempted rush to judgement and kept Smith on ice until July 1, 2024 when, in a 6-3 decision, the court established a broad swath of immunity for a president’s conduct in office. Smith was not only forced to cut his indictment by roughly nine pages and eliminate former DOJ official Jeff Clark as a co-conspirator, but had to wait until the case went back to Chutkan in September.

Dodged a Bullet

By then, with two months until Election Day, not even the most partisan bloodthirsty prosecutor would get away with bringing another criminal indictment against the GOP presidential candidate and his longtime friend, considered a hero by many Americans for his leadership after 9/11. All Smith could hope for at that point was a Harris victory.

That, of course, didn’t happen.

Instead, Smith was forced to drop the J6 case in Washington after the president won. (Judge Aileen Cannon had already dismissed his documents case in Florida in July 2024 upon finding his appointment violated the Constitution.)

But the disclosures about Smith’s pursuit of Republican lawmakers’ cell phone activity—released this week by Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) with promises of more to come—are a reminder of what the country, and the president, avoided by a Harris loss.