Following a recent interview where he robustly defended his halted investigations into the Jan. 6 events and the Mar-a-Lago situation involving former President Donald Trump, former special counsel Jack Smith communicated to Congress that his actions were “entirely proper, lawful.” He emphasized that his approach mirrored those used in the classified documents probe concerning former President Joe Biden.

Roughly three weeks ago, media outlets supportive of Trump, alongside several lawmakers, most notably Sen. Josh Hawley, R-Mo., initiated a campaign accusing Smith of intercepting calls from eight U.S. senators and a House member as part of his Jan. 6 investigation. This was portrayed as a startling disclosure, with some drawing parallels to Watergate, branding it as possibly even more severe.

Subsequently, calls for Smith to appear before Congress intensified, with demands for clarification.

At the time, cooler heads noted that there is a difference between “tapping” or wiretapping a phone, which reveals the contents of calls in real time, and subpoenaing “toll records,” metadata after the fact about who was speaking with whom, when, where and for how long — essentially, call logs. That was a distinction that the Yale Law School-educated Hawley — who backed Trump”s stolen 2020 election falsehood and then ran when the Jan. 6 mob descended on the Capitol — didn’t appreciate.

Smith has since addressed these concerns via a letter from his attorneys at Covington & Burling, directed to Sen. Chuck Grassley, R-Iowa, and the Senate Judiciary Committee, which includes Hawley.

Although the letter did not specifically mention Hawley, it sought to “correct inaccurate assertions made by [Grassley] and others” regarding the issuance of a grand jury subpoena for the call records of eight senators and one House member. This list includes Sens. Hawley, Lindsey Graham, R-S.C., Bill Hagerty, R-Tenn., Dan Sullivan, R-Alaska, Tommy Tuberville, R-Ala., Ron Johnson, R-Wis., Cynthia Lummis, R-Wyo., Marsha Blackburn, R-Tenn., and Rep. Mike Kelly, R-Pa.

“Several individuals have incorrectly claimed that Mr. Smith ‘tapped’ senators’ phones, ‘spied’ on their communications, or ‘surveilled’ their conversations,” the letter explained. “It’s important to clarify that toll records only provide telephonic routing information collected after the calls have occurred. This includes identifying incoming and outgoing numbers, call times, and durations. Toll records are historical and do not contain call content. Wiretapping, however, involves intercepting communications in real-time, which the Special Counsel’s Office did not engage in.”

What’s more, the letter said, subpoenaing toll records is “routine and lawful,” citing, by way of example, special counsel Robert Hur’s investigation of Biden’s retention of classified documents.

The portion of the Hur Report on the Joe Biden probe that discusses toll records (Special Counsel’s Office).

“Indeed, Special Counsel Robert Hur subpoenaed toll records in his investigation of President Biden,” Smith’s attorneys said. “During the current Trump administration, the Department of Justice has routinely relied upon subpoenaed toll records in numerous criminal prosecutions.”

Echoing Smith’s recent statement in an interview by former Robert Mueller top lieutenant Andrew Weissmann, the letter noted the former special counsel had to get approval from the DOJ’s Public Integrity Section before “taking this investigative step.”

From there, Smith’s lawyers also threw cold water on the notion that the toll records detail is a new revelation, pointing to Trump’s years-old Jan. 6 indictment and the erstwhile special counsel’s final report on the investigation — all of which is and has been available to the public.

“Paragraph 119 of the August 1, 2023 indictment describes some of the calls that were made to U.S. Senators on January 6, 2021, and footnote 132 of Volume 1 of the Special Counsel Report refers to the use of toll records in the investigation,” the letter continued. “Moreover, the precise records at issue were produced in discovery to President Trump’s personal lawyers, some of whom now serve in senior positions within the Department of Justice.”

That paragraph of the indictment contained details about the timing of calls between unnamed coconspirators and senators, in the context of Trump’s alleged attempts to convince them to “delay the certification” of the election “based on knowingly false claims of election fraud[.]” While the paragraph included the content of voicemails left by someone referred to as Co-Conspirator 1, whom the letter identified as Rudy Giuliani, the content of at least one of those calls was public knowledge two days after Jan. 6:

a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.

b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 placed calls to five United States Senators and one United States Representative.

c. Co-Conspirator 6 attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 to call and attempt to enlist in further delaying the certification.

d. In one of the calls, Co-Conspirator 1 left a voicemail intended for a United States Senator that said, “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.”

e. In another message intended for another United States Senator, Co-Conspirator 1 repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that “illegal immigrants” had voted in substantial numbers in Arizona; and that “Georgia gave you a number in which 65,000 people who were underage voted.” Co-Conspirator 1 also claimed that the Vice President’s actions had been surprising and asked the Senator to “object to every state and kind of spread this out a little bit like a filibuster[.]”

Footnote 132 of Smith’s final report cited the same voicemails along with the parentheticals “Co-Conspirator 1 Toll Records,” “Co-Conspirator 1 Toll Analysis” and “Voicemail from Co-Conspirator 1.”

Footnote 132 of Jack Smith’s Jan. 6 report (Special Counsel’s Office).