When federal prosecutors secretly subpoena the phone records of sitting members of Congress from the opposing party — especially those charged with overseeing the Department of Justice — the issue is no longer January 6. It is whether the executive branch is exercising its investigative authorities in a manner consistent with constitutional boundaries, established procedures, and respect for the separation of powers.
In 2023, as part of the FBI’s Arctic Frost investigation led by Special Counsel Jack Smith, the Bureau obtained cell phone toll records for nine Republican members of Congress — eight senators and one representative. Telecommunications carriers provided metadata only, including phone numbers dialed or received, timestamps, call duration, and general location information for the period January 4 through January 7, 2021. No call content was obtained.
Smith later acknowledged that media reporting describing phone calls between President Trump, his attorney Rudy Giuliani, and Republican lawmakers motivated the decision to seek these records. According to his attorneys, the subpoenas were “narrowly tailored,” limited to a four-day window, and issued in compliance with Department of Justice policy. (RELATED: Bitter Jack Smith Proves Himself Guilty of Being a Weasel)
What has never been publicly explained, however, is the specific rationale for including each lawmaker—or whether they were considered witnesses, investigative subjects, or targets. That distinction is critical, both legally and constitutionally. (RELATED: How COVID Mania Inspired the Events of January 6)
The uncertainty deepened last month when reports emerged that Arctic Frost subpoenas were issued not only for former Speaker Kevin McCarthy, but also for Rep. Jim Jordan, chairman of the House Judiciary Committee. In Jordan’s case, the scope was far broader, covering January 1, 2020, through April 2022 — a 28-month period that began a full year before January 6 and encompassed his tenure overseeing the DOJ and FBI.
What articulable facts justified predicating a criminal investigation of the chairman of the House Judiciary Committee a full year before January 6?
As with other subpoenas, the request sought metadata only, not content, for several phone numbers associated with Jordan. It also imposed a one-year nondisclosure order prohibiting Verizon from notifying him that his records had been obtained.
That breadth raises fundamental questions. What articulable facts justified predicating a criminal investigation of the chairman of the House Judiciary Committee a full year before January 6? And what specific federal crime was under investigation? What evidence did investigators believe they would uncover? (RELATED: Peter Navarro, Lawfare, and the Death of Executive Privilege)
Those questions became even more pressing in light of Jack Smith’s closed-door deposition before the House Judiciary Committee on December 17 — conducted under the chairmanship of Jordan himself. To date, Smith has not publicly addressed the rationale for the scope or secrecy of the subpoenas targeting sitting lawmakers.
Additional context comes from whistleblower disclosures released by Sen. Chuck Grassley. According to those materials, the subpoenas involving Jordan, McCarthy, and others were among 197 “prohibited access” demands affecting approximately 430 Republican individuals and entities. All were subject to nondisclosure orders that left those targeted unaware for months — or even years.
In my view, the decision to obtain Rep. Jordan’s personal phone records — particularly given the expansive scope of the request — along with similar actions involving other senior Republicans under the Arctic Frost investigation, reflects an unjustified overreach and misuse of the grand jury process and DOJ investigative authorities.
Reliance on the secrecy of the grand jury to pursue overly broad records demands against sitting lawmakers risks normalizing partisan “fishing expeditions” into the internal communications of the opposition party. More broadly, it undermines the separation of powers when the executive branch covertly subpoenas the records of legislators charged with overseeing that very branch.
It also raises a practical question: why weren’t these lawmakers simply interviewed?
When investigators seek information from witnesses, the FBI typically requests voluntary cooperation. Lawmakers could have been asked about their communications or invited to provide relevant billing records. If cooperation were declined, investigators could have pursued sworn testimony through a subpoena. Instead, they opted for clandestine acquisition of toll records without notice.
In my experience, secretly subpoenaing the phone records of elected officials strongly suggests those individuals were viewed as investigative subjects, not merely witnesses. That brings us to the core issue: what potential violation of federal law justified such an aggressive step?
How FBI Investigations Are Predicated
Under the FBI’s Domestic Investigations and Operations Guide (DIOG), opening a criminal investigation requires an “articulable factual basis” indicating that a federal statute has been, is being, or is about to be violated. Agents must identify the specific statutes at issue to ensure investigations are grounded in law — not speculation — and that all subsequent steps remain within defined legal parameters.
Typically, a Supervisory Special Agent reviews the electronic communication requesting case opening. If approved, the case is formally opened, assigned, and noticed to FBI Headquarters and the U.S. Attorney’s Office, ensuring oversight and accountability.
When the subject of an investigation is an elected official, the stakes increase dramatically. Such cases require heightened scrutiny, close coordination with the DOJ’s Public Integrity Section, and strict adherence to protocol to guard against political bias or misuse of authority.
Investigations of public officials strike at the core of public trust. If they result in prosecution, they may remove a duly elected representative from office, effectively overturning the will of voters. That reality demands restraint, precision, and transparency.
Back to Arctic Frost
Seeking and obtaining toll records of members of Congress by grand jury subpoena is functionally indistinguishable from a public corruption investigation. Notably, Smith’s Trump-related inquiry received support from the FBI’s now-disbanded public corruption squad, CR-15, at the Washington Field Office — underscoring the sensitivity of the matter.
Were the lawmakers swept into Arctic Frost viewed as witnesses? That seems unlikely. When agents identify witnesses, they typically pursue voluntary cooperation first. What, then, in the case’s predication justified resorting immediately to covert compulsory process?
Subjects Versus Targets
In FBI terminology, a subject is someone within the scope of an investigation whose involvement has not been resolved. A target is an individual against whom prosecutors believe substantial evidence exists and who is likely to be charged.
If the Republican lawmakers involved were not formal targets, they were at least subjects — meaning investigators possessed some basis to suspect potential criminal exposure. But exposure to what crime?
An internal FBI electronic communication (EC) dated September 27, 2023, referenced a “preliminary toll analysis” involving records of the nine members of Congress and was approved by two Supervisory Special Agents at the Washington Field Office. Decisions of that magnitude are not routine. What role did FBI leadership and DOJ officials play in approving this approach? And will there be accountability?
Finally, the Constitution’s Speech or Debate Clause exists precisely to shield legislators from executive-branch intimidation and preserve congressional independence. What conceivable criminal violations arise from lawmakers communicating with the executive branch — or others — in the days surrounding January 6? Is political advocacy or questioning the 2020 election now sufficient to trigger covert surveillance by the DOJ?
Those questions extend well beyond Arctic Frost. They go to the heart of constitutional governance — and demand clear answers.
READ MORE from Mark D. Ferbrache:
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Mark D. Ferbrache is a retired FBI Special Agent and former Counterintelligence specialist in the U.S. Intelligence Community.
