Spending Bill Would Pave Way for Senators to Sue Over Phone Searches

Republicans have voiced outrage that Jack Smith looked at G.O.P. lawmakers’ phone records surrounding the Jan. 6 attack. Legislation to reopen the government would allow them to sue for $500,000 each.

A spending package expected to be approved as part of a deal to reopen the government would create a wide legal avenue for senators to sue for as much as half a million dollars each when federal investigators search their phone records without notifying them.

The provision, tucked into a measure to fund the legislative branch, appears to immediately allow for eight G.O.P. senators to sue the government over their phone records being seized in the course of the investigation by Jack Smith, the former special counsel, into the riot at the Capitol on Jan. 6, 2021.

The provision would make it a violation of the law to not notify a senator if their phone records or other metadata was taken from a service provider like a phone company. There are some exceptions, such as 60-day delays in notification if the senator is considered the target of an investigation.

The language of the bill states that “any senator whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed in violation of this section may bring a civil action against the United States if the violation was committed by an officer, employee, or agent of the United States or of any federal department or agency.”

Because the provision is retroactive to 2022, it would appear to make eligible the eight lawmakers whose phone records were subpoenaed by investigators for Mr. Smith as he examined efforts by Donald J. Trump to obstruct the results of the 2020 presidential election.

Each violation would be worth at least $500,000 in any legal claim, according to the bill language. The bill would also sharply limit the way the government could resist such a claim, taking away any government claims of qualified or sovereign immunity to fight a lawsuit over the issue.

The Republican senators whose phone records were subpoenaed as part of the investigation were: Lindsey Graham of South Carolina, Marsha Blackburn and Bill Hagerty of Tennessee, Josh Hawley of Missouri, Dan Sullivan of Alaska, Tommy Tuberville of Alabama, Ron Johnson of Wisconsin and Cynthia Lummis of Wyoming. Representative Mike Kelly of Pennsylvania also had his phone records subpoenaed but would not be eligible because he is a member of the House.

Mr. Smith requested the phone records of the lawmakers in 2023, but they were not formally told of the subpoenas until earlier this year. Republican lawmakers, including the chairman of the Judiciary Committee, Senator Charles E. Grassley of Iowa, have denounced the investigative tactic used against lawmakers, referring to it as inappropriate spying.

It was unclear which Republican lawmaker added the language on phone searches to the bill.

Mr. Smith, through his lawyers, has denied any wrongdoing, saying it was a legitimate and authorized investigative tactic to understand the actions of Mr. Trump and his inner circle, suggesting it was not meant to scrutinize the actions of the lawmakers themselves.

Senator Ron Wyden, Democrat of Oregon, accused Republicans of hiding a provision in the funding bill that would give millions of taxpayer dollars “to a handful of Republican senators who helped Trump try to overthrow the government.”

Mr. Wyden said in a statement that every American “should have the right to be told if the government spies on them,” but added that this bill “takes a reasonable protection against government surveillance and wraps it in an unacceptable giveaway of your tax dollars to Republican senators.”

Seizing someone’s phone records does not mean investigators can listen to conversations or know the contents of the conversations. The phone records, often referred to as metadata, are like phone billing records, in that they show what numbers that phone called and received calls from, how long the calls lasted, and often where the calls were made.

Devlin Barrett covers the Justice Department and the F.B.I. for The Times.

A version of this article appears in print on Nov. 11, 2025, Section A, Page 20 of the New York edition with the headline: Provision Tucked Into Spending Bill Would Allow Senators to Sue Over Phone Searches.

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