On September 29, former Special Counsel Jack Smith sat before the Senate Judiciary Committee, and Sen. Katie Britt of Alabama asked him a simple question.
"Mr. Smith, it's your testimony to this committee that you observed the proper investigative protocols at all times, including the filter team?"
"Yes," Smith said. "We sought to do things consistent with the law and department policy."
Smith's own office's emails tell a different story.
Federal prosecutors use a filter team any time they seize material that could include private conversations between a defendant and his lawyers. Separate agents and attorneys, walled off from the case, review everything first and pull out anything protected before the investigators ever see it. It exists to protect one of the oldest rights in American law, the right to talk to your lawyer in confidence.
Internal emails obtained by The Oversight Project through public records requests show Smith's office admitting at least six times, between December 2022 and August 2023, that suspected privileged or sensitive material had slipped past that filter. Some of it reached frontline FBI agents working the case.
In December 2022, a lawyer warned that one batch of records "contains some potentially privileged material." In May 2023, another wrote, "It's a privileged doc. Can we have it removed?"
On August 3, 2023, Smith's own records officer emailed the FBI. "The Smith Special Counsel Office requests the FBI search its Outlook server and/or eVault for the following potentially privileged document which may have been inadvertently sent to members of the investigative team." The office wanted it found and purged.
Five days later, another official in the office wrote, "I would delete the email, but for FOIA purposes perhaps I shouldn't."
The official's first thought was to delete it. Public records law was the only thing that stopped them.
"That's a violation of somebody's constitutional rights," said Marshall Yates of The Oversight Project. He said the records show a pattern of investigators seeing material "before it goes to a filter team."
That fits with what else has come out about Smith's operation.
His team got a pen register and trap-and-trace device on Susie Wiles, who ran Trump's campaign and is now White House chief of staff. The devices logged who called her and when, and those calls included ones from Trump's own defense lawyers.
Smith's team also subpoenaed the phone toll records of roughly 20 Republican members of Congress. Sen. Marsha Blackburn of Tennessee is one of them. According to her lawsuit, Smith got a court order gagging her phone carrier without ever telling the judge the records belonged to a sitting U.S. senator.
Blackburn sued Smith personally on September 30, the day after he told the Senate he'd followed the rules. Her lawsuit says he violated the Constitution's Speech or Debate Clause, which shields lawmakers' official work from the executive branch, along with the First and Fourth Amendments.
In July, House Judiciary Chairman Jim Jordan referred Smith to the Justice Department for possible prosecution. Jordan says Smith made false statements in a December 2025 deposition about obtaining lawmakers' phone records. Jordan's letter also said Department documents showed Smith's team had text messages from "44 Members of Congress" that "may have included privileged content."
Smith denies doing anything wrong. At the same Senate hearing where Britt questioned him, he told senators he would go after Trump again if he had the chance.
Jordan's referral is now with the Justice Department, which Todd Blanche runs. Blackburn's lawsuit is in federal court in Tennessee. And the emails from Smith's office show at least six times his team flagged privileged material that had gotten past the filter.
