This email may represent the first public evidence that the Biden Administration’s DOJ knew the special counsel’s office planned to subpoena congressional Republicans. But the scandal is even greater because in “concurring” in Smith’s use of subpoenas to target communications of members of Congress, the DOJ’s Public Integrity Section expressly acknowledged the unconstitutionality of the proposed course of action.
“As you are aware, there is some litigation risk regarding whether compelled disclosure of toll records of a Member’s legislative calls violates the Speech or Debate Clause in the D.C. Circuit,” Principal Deputy Chief of the DOJ’s Public Integrity Section John Keller wrote in a May 17, 2023 email to two top members of the special counsel’s team. Significantly, that email then cited the controlling precedent of United States v. Rayburn House Office Building, 497 F.3d 654, 662 (D.C. Cir. 2007), citing that appellate court decision’s holding that under the Speech or Debate Clause, “[t]he bar on compelled disclosure is absolute.” That email also cited In re Grand Jury Investigation, 587 F.2d 589, 594 (3d Cir. 1978) as establishing “[t]he caselaw is clear that a legislator asserting the invasion of the Speech or Debate Clause privilege by use of a grand jury subpoena to a third party may intervene and oppose such use.”