Jack Smith Didn’t Just Cut Constitutional Corners, He Shredded Separation Of Powers
Margot Cleveland Visit on Twitter@ProfMJCleveland
The just-released memoranda suggest the special counsel knew he should have consulted Judge Boasberg.
Months before Jack Smith subpoenaed the toll records of scores of Republican senators, a Chief Judge of the D.C. District Court rejected the Special Counsel Office’s attempt to sidestep the Speech or Debate Clause in another case involving a congressman. That detail and more revealed in internal documents from the special counsel’s team obtained exclusively by The Federalist, expose the depth of disregard Smith held for constitutional separation of powers.
Sen. Chuck Grassley, R-Iowa, has authorized for public release another batch of documents related to Special Counsel Smith’s targeting of President Trump. This cache consists of some 50 pages of internal communications the Iowa senator obtained pursuant to his oversight role as Chair of the Senate Judiciary Committee, including two memoranda detailing the limits the D.C. Circuit’s decision in United States v. Rayburn House Off. Bldg., placed on the seizure of Congressional records — constitutional limits Special Counsel Smith would later disregard.
A three-page, single-spaced memorandum drafted by Assistant Special Counsel John Pellettieri, addressed to Jack Smith and dated January 8, 2023, opened by stating the memorandum sought to summarize “Speech or Debate litigation before Chief Judge Beryll Howell,” pertaining to searches regarding Representative Scott Perry. The memorandum then noted that “[t]he logistical and legal difficulties regarding execution of these warrants arises from questions about the application of the D.C. Circuit’s decision in United States v. Rayburn House.”
Over the next page, Pellettieri explained that the Rayburn case involved a warrant to search the congressional offices of Representative William J. Jefferson, and had established “‘special procedures’ that contemplated the use of a ‘filter team,’” to “determine whether any seized materials were privileged under the Speech or Debate Clause.” On appeal, the D.C. Circuit rejected the DOJ’s search protocol, and held that “permit[ing] the government to review privileged materials without affording the member an opportunity to assert privilege before compelled disclosure to the Executive Branch violated the Speech or Debate Clause.”
Pellettieri unabashedly declared: “The Rayburn decision is erroneous and highly problematic for obvious reasons.” He added that “[t]here is broad and narrow language in Raburn that make it difficult to determine the scope and reach of the opinion, as well as what exactly it requires.”
As the memorandum would then explain, prosecutors had pushed a narrow reading of Rayburn in its subpoenaing of Representative Perry’s records. Nonetheless, “[o]ut of an abundance of caution given questions about the scope of Rayburn,” the memorandum explained, that prosecutors included with the warrant application an attachment stating it would adopt “Rayburn-compliant protocols,” namely giving Rep. Perry “an opportunity to assert the Speech or Debate privilege over records in the extraction,” from his cell phone.