Video transcript
Many days after Kevin McCarthy was sworn in as speaker, did you subpoena his records? I don't recall, but those two things had nothing to do with it. It was 16 days after becoming the highest-ranking Republican in the House of Representatives. You subpoenaed his toll records. Do you agree that that might reasonably be considered a violation of the speech or debate clause? I do not, and I want to be clear that the toll records— We were collecting months' worth of phone data on the Republican Speaker of the House, the leader of the opposition, right after he got sworn in as speaker, all around the time of a major vote. That sounds like a flagrant violation of the speech or debate clause to me, and I think most people agree with me. And Speaker McCarthy had no recourse, did he, because you issued a non-disclosure order ensuring that neither he nor any of the American people knew about these subpoenas. Is that right? The toll record, the non-content toll record subpoenas, we did secure non-disclosure orders for those subpoenas. You did, and let me ask you, Mr. Smith, at the time you secured those non-disclosure orders, was Speaker McCarthy a flight risk? The non-disclosure order was based on concerns about— Was Speaker McCarthy a flight risk? He was not. He was not. Then why did your non-disclosure order refer to him as a flight risk? It says right here, "The court finds reasonable grounds to believe that such disclosure will result in flight from prosecution." Sir, when securing a non-disclosure order, the risks don't have to be associated with the— Do you think the Speaker of the House is a flight risk? Did he finish answering the question? No, this is not your time. This is my time. You think the Speaker of the House is a flight risk? Do you think he's going to hop on a plane and leave the country? No, what I was trying to explain is with respect to a non-disclosure order, the risks aren't necessarily associated with the subscriber to the phone. There are risks to the investigation. I think that you were using—this was clearly in reference to Speaker McCarthy, and you were using clearly false information to secure a non-disclosure order to hide from Speaker McCarthy and from the American people the fact that you were spying on his toll records. But I've got more, so let's move on. In May of 2023, you also issued subpoenas for toll records of nine U.S. Senators and an additional representative. Is that right? In May of 2023, we did issue— You did, and there were non-disclosure orders in conjunction with those subpoenas as well, right? That's correct, consistent with Department policy and the law. So again, nobody would know what you were doing. The Senators would, and the Representatives would, and the American people wouldn't know what you were doing. Is that right? The toll records that we secured and the non-disclosure orders were consistent with policy and consistent with— And you knew, whenever you were doing that, that there was a risk you were violating the speech or debate clause. Is that right? The toll record subpoenas that we secured were with the concurrence of the public— Your own analysis says that you knew there was a risk you were violating the speech or debate clause. I have it right here. It's an email from John Keller at public integrity section to your team. 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. That's from your own analysis right there. So you did know, didn't you? So with respect to the item you just put up on the screen, the last sentence states— We're going to get to the last sentence. We're going to get to the last sentence. And you cite case law in here, quote, "The bar on compelled disclosure is absolute." Is that right? Or do you think that you didn't have to abide by that precedent? To be clear, this is not—this statement is not from my office. This is the statement of public— This is your justification for those subpoenas and NDO's that you ordered. This was part of your analysis. It's a cursory analysis. I think it's worth noting. But let's get to that last sentence then. Quote, "Given my understanding of the low likelihood that any of the members listed below would be charged, the litigation risk should be minimal here." In other words, you're using a novel legal theory, which you knew was novel, has never been tested by any court. You're not charging any of these members. Nobody's going to know about it because you issued NDO's. Nobody's going to sue about it, so sue this. So who cares? We're going to do it anyways. You walked all over the Constitution throughout this entire process, buying our members of Congress, and you know it. - It's absolutely disgraceful. - The time.
Transcribed automatically. Expect errors in names and numbers.