Newly uncovered documents reveal that Jack Smith’s top deputy in the election investigation openly advocated for eliminating a constitutional protection that shields lawmakers from executive branch prosecution, sparking fresh concerns about the special counsel’s respect for constitutional boundaries.

Deputy Prosecutor’s Constitutional Opposition Exposed

J.P. Cooney, who served as principal deputy prosecutor under former special counsel Jack Smith, stated in a 2021 exchange that he actively supported repealing the Speech or Debate Clause. The constitutional provision protects members of Congress from criminal or civil prosecution stemming from their legislative duties and speech. Cooney wrote to fellow prosecutor Molly Gaston that he was “an advocate for repealing the clause” but acknowledged being “stuck with it” under current law. Both prosecutors later joined Smith’s team investigating efforts to challenge the 2020 presidential election results.

Senate Judiciary Committee Chairman Chuck Grassley obtained the records and confronted Smith during Tuesday testimony on Capitol Hill. The Iowa Republican told reporters that Cooney “flaunted his disdain for the speech or debate clause, which protects the separation of powers.” Grassley argued that this attitude foreshadowed Smith’s subsequent actions, including secretly obtaining toll records and text messages from dozens of members of Congress without proper constitutional safeguards.

Republicans Challenge Special Counsel’s Constitutional Compliance

During the hearing, Grassley pressed Smith on what specific directions he gave staff regarding the Speech or Debate Clause and attorney-client privileged material. Smith defended his team’s conduct, claiming they “took our obligations seriously” and consulted with the Justice Department’s Public Integrity Section when appropriate. He characterized the clause as “an important part of the separation of powers” and emphasized that his staff had extensive experience handling such constitutional issues from prior work.

Grassley dismissed Smith’s explanation as contradicted by his team’s actual behavior. The special counsel’s office obtained and reviewed communications involving at least seven lawmakers, including Senators Chuck Grassley, Ron Johnson, John Cornyn, Josh Hawley, Mike Lee, Cory Booker, and the late Lindsey Graham. Separate subpoenas targeted telephone records from a smaller group of Congress members. Republicans note that in 2023, four prosecutors on Smith’s team received warnings that subpoenaing congressional information could violate constitutional protections.

Constitutional Protections Under Scrutiny

The Speech or Debate Clause exists to prevent the executive branch from coercing the legislative branch through threats of prosecution for lawmakers’ official duties. Cooney’s previously released messages show he complained about statutory restrictions on obtaining lawmakers’ telephone records during a separate 2021 investigation, calling the protective language “ridiculous.” Both Cooney and Gaston now work for Democracy Forward, an advocacy organization that referred media inquiries to a press release announcing their hiring. Grassley concluded that “Jack Smith and his team disgracefully tore up the Constitution throughout his partisan investigation,” attributing the conduct to unchecked government power.