Newly released internal memos show the Special Counsel’s team tried to ignore the Constitution’s Speech or Debate Clause in its push to examine the phone records of Republican senators.

Special Counsel Memos Reveal Attempt to Sidestep Speech or Debate Clause

Senator Chuck Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, authorized the public release of roughly 50 pages of communications between his staff and Special Counsel Jack Smith’s office, obtained through his oversight authority.

A January 8, 2023 memorandum by Assistant Special Counsel John Pellettieri, addressed to Smith, summarized litigation before Chief Judge Beryl Howell involving Representative Scott Perry and warned that the D.C. Circuit’s decision in United States v. Rayburn House Office Building created “logistical and legal difficulties” for executing the warrants.

Pellettieri noted that the Rayburn case required a “filter team” to determine whether seized materials were privileged under the Speech or Debate Clause, and that the D.C. Circuit later rejected the DOJ’s search protocol as violating that clause.

Despite arguing the protocol was unnecessary because Perry’s phone was personal, prosecutors included a “Rayburn‑compliant” attachment promising Perry a chance to assert privilege, and Chief Judge Howell concluded the procedure applied, resulting in 164 privileged records out of roughly 2,000 messages.

The memorandum also described a request from Special Counsel Hulser for a one‑page brief that highlighted Rayburn’s 2007 holding—a non‑disclosure protection in the Speech or Debate Clause—and stressed that other circuits disagree with the D.C. Circuit’s view, a point Smith could use to shape his arguments before Judge Howell.

The docket remains sealed except for a few unsealed orders concerning the cell‑phone seizure, leaving unclear whether the Special Counsel ever obtained Google or Apple data, or whether it abandoned those warrants to avoid exposing the legal maneuvering to Congress.

The documents indicate Smith’s team knew a court order would force them to follow Rayburn, a step they avoided to keep the investigation hidden, a pattern that echoes earlier attempts to subpoena Senator Ted Cruz’s toll records after AT&T raised Speech or Debate concerns.