Blackburn sues Smith over secret phone records subpoena

Key points

• Sen. Marsha Blackburn (R-Tenn.) sued Jack Smith and the DOJ in the U.S. District Court for the Middle District of Tennessee on September 30, 2026.
• The suit alleges Smith’s office obtained Verizon toll records in May 2023 using a nondisclosure order that hid the subpoena from Blackburn and other lawmakers.
• Blackburn’s legal team, the New Civil Liberties Alliance, argues Smith’s appointment by then-AG Merrick Garland was unconstitutional under the Appointments Clause.
• The complaint claims the 'Arctic Frost' probe targeted approximately 400 Republican individuals and 20 members of Congress, including 102 Tennessean donors.
• Blackburn is seeking a declaration that the probe was illegal, the destruction of her records, and $1 in nominal damages to emphasize accountability over monetary gain.

Background

This litigation follows a contentious September 29, 2026, hearing before the Senate Judiciary Committee, where Smith defended his investigations into President Trump’s 2020 election interference claims. Prior to the hearing, the GOP-led House Judiciary Committee released redacted documents in October 2025, revealing that the FBI investigated roughly 160 Republican figures. The current suit extends a broader political conflict in which Trump allies are pursuing legal and political accountability against officials who investigated the former president, including former FBI director James Comey and Sen. Adam Schiff.

How outlets are covering it

Outlets diverge on the framing of the suit’s core argument. Politico emphasizes the procedural violation, noting Blackburn’s claim that Smith committed a 'gross abuse of power' by hiding the subpoena from the court. Fox News highlights the constitutional challenge, focusing on the argument that Smith lacked lawful authority to serve as special counsel because he was not nominated by the President or confirmed by the Senate. Axios provides the quantitative scope, detailing that the probe targeted 400 individuals and 20 lawmakers, while also noting a recent viral factual error by Sen. Eric Schmitt during the hearing. In contrast, Sen. Raphael Warnock’s office (via booker.senate.gov) dismisses the legal action as a distraction, arguing that Senate Republicans are targeting investigators like Smith instead of addressing economic and healthcare concerns.

Why it matters

The lawsuit tests the limits of executive power and the Speech or Debate Clause, potentially setting a precedent for the legality of special counsel appointments and secret subpoenas targeting legislators. It also signals a shift in the political landscape, where legal challenges to the Justice Department’s past actions are becoming a central strategy for the current administration’s allies.

What to watch

The case will proceed in the Middle District of Tennessee, where a judge must determine if Smith’s appointment was constitutional and if the nondisclosure order violated Blackburn’s rights. Smith’s legal team has not yet responded to requests for comment. The outcome could influence ongoing efforts by the Trump administration to hold former officials accountable for their investigations into the former president.