Sen. Marsha Blackburn (R-Tenn.) filed a lawsuit on Wednesday, September 30, 2026, against former special counsel Jack Smith and the Justice Department for obtaining her phone records during a federal investigation into the 2020 election. The lawsuit, filed in the U.S. District Court for the Middle District of Tennessee, alleges that Smith’s team targeted Blackburn for her politics and violated legal protections for members of Congress. Blackburn is asking a federal judge to declare Smith’s appointment and investigation illegal and to order the destruction or return of her materials.
The legal action follows Smith’s testimony before the Senate Judiciary Committee on Tuesday, September 29, 2026. During that hearing, Smith defended his office's efforts to obtain "toll records"—which include call logs and lengths but not the content of messages—from dozens of Republican lawmakers who communicated with Donald Trump and his advisers in January 2021. Smith testified that his actions complied with Justice Department regulations and were cleared by the department's Public Integrity Section.
Blackburn’s complaint focuses on Smith’s use of a court-ordered subpoena to Verizon and a subsequent nondisclosure order that prevented the company from notifying her. The lawsuit argues these actions violated the Constitution’s Speech or Debate Clause, which provides lawmakers immunity for acts taken as part of their office. The complaint also alleges Smith’s team took steps to avoid allowing her to assert her rights, such as by not disclosing to the court that the records belonged to a member of Congress, and dropped a similar subpoena to AT&T when that company raised constitutional objections.
For the public and federal agencies, the case could influence how the Justice Department handles investigations involving elected officials and the use of nondisclosure orders to telecom providers. If a judge agrees with Blackburn that Smith’s appointment was illegal, it could establish a precedent limiting the scope of special counsel investigations. This follows a 2023 ruling by the D.C. Circuit Court of Appeals that required a "fact-specific" inquiry to determine if records from Rep. Scott Perry (R-Pa.) were "legislative" and therefore protected.
The Justice Department now faces the task of defending Smith’s appointment and his investigative tactics. While U.S. District Judge Aileen Cannon previously ruled Smith's appointment was illegal, the Justice Department has not conceded the point. What happens next depends on the court's response to Blackburn's request for an injunction. The Supreme Court has not yet issued a definitive ruling on whether the Speech or Debate Clause extends to the type of phone toll records seized in this investigation.
Smith defended the secrecy of the records search by citing the need to protect the investigation from potential interference, noting that Trump had previously used social media to threaten witnesses. Blackburn, in a statement, characterized the lawsuit as an effort to ensure the justice system is not "weaponized" against the American people. The case remains separate from a previously proposed, but later removed, Senate provision that would have allowed members to claim $500,000 for having their records searched.