Part of the legislative package to end the federal government shutdown contains language that allows U.S. senators like Sen. Cynthia Lummis (R-WY) to sue the government if federal law enforcement seizes or subpoenas their data without telling them.
That’s after Lummis and other lawmakers had their phone records from the week of the attack on the Capitol on Jan. 6, 2021 subpoenaed by the Federal Bureau of Investigation (FBI), according to a document released by the Senate Judiciary Committee.
The subpoenas were part of special counsel Jack Smith’s investigation into Pres. Donald Trump’s efforts to overturn the results of the 2020 election.
In 2023, the FBI pulled phone records and data related to “Election Law Matters” from nine elected officials, including Lummis, between Jan. 4 and Jan. 7, 2021.
The document says the FBI gathered what it refers to as “limited toll records,” which include information about which numbers participated in a call and how long it lasted, but not the contents of phone calls themselves.
The FBI’s phone records investigation infuriated lawmakers like Lummis, whose spokesperson told Wyoming Public Radio in an emailed statement on Nov. 13, “this provision is the only way to hold Jack Smith and wrongdoers accountable.”
The spokesperson did not specify whether or not Lummis would sue the government using the new provision and said Lummis did not have time for a phone interview before this article’s publishing.
“Senator Lummis did not author this language,” the spokesperson wrote. “However, we won't forget that the DOJ and FBI under Joe Biden violated the Constitution's separation of powers by spying on Republican United States Senators, without their knowledge. These Senators, including Senator Lummis, were surveilled by the Biden administration because they support President Trump and the America First agenda. We must not allow this politicization of federal agencies to become routine. Liquidated damages provisions are commonly used, and this provision is the only way to hold Jack Smith and wrongdoers accountable.”
Sen. Lindsey Graham (R-SC) concurred, telling reporters in South Carolina on Nov. 12 that he would “definitely” sue under the new law.
“And if you think I'm going to settle this thing for a million dollars? No,” said Graham. “I want to make it so painful, no one ever does this again.”
He said the provision allowing lawsuits against the government over the phone data incident would protect Democratic senators, too.
The language in the shutdown spending bills appears to apply only to U.S. senators, allowing them to seek potential damages of $500,000 for each alleged violation going back to 2022.
However, Politico reported on Nov. 12 that members of the U.S. House are calling for a standalone bill that would invalidate the lawsuit provision entirely.
Rep. Jamie Raskin, the top Democrat on the House Judiciary Committee, told Politico there was “bipartisan outrage” over the provision. He said it may violate the Senate’s rules against senators enriching themselves.
Lummis said she’s asked FBI Director Kash Patel to release data, transcripts and names relating to the FBI investigation.
This reporting was made possible by a grant from the Corporation for Public Broadcasting, supporting state government coverage in the state. Wyoming Public Media and Jackson Hole Community Radio are partnering to cover state issues both on air and online.
