Former special counsel Jack Smith is set to testify before the Senate Judiciary Committee Tuesday as Republican lawmakers intensify their scrutiny.
Former special counsel Jack Smith is set to testify before the Senate Judiciary Committee Tuesday as Republican lawmakers intensify their scrutiny of investigative tactics used during the federal investigation into President Donald Trump and efforts to challenge the results of the 2020 election.
The committee has scheduled a hearing titled "Oversight of Jack Smith's Abuse of Authority and the Targeting of Republicans and Related Matters" for 9 a.m. Tuesday, with Smith listed as the witness.
The hearing is expected to focus heavily on "Arctic Frost," the federal investigation that preceded Smith's election-related prosecution of Trump, and on investigators' efforts to obtain communications and phone records involving members of Congress.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Ron Johnson, R-Wis., have released records showing Smith's investigative team reviewed text messages involving 44 current and former members of Congress, including both Republicans and Democrats. Those messages came from government phones and were obtained through subpoenas to the National Archives as investigators sought communications involving Trump administration officials and advisers.
Separately, congressional investigators have disclosed subpoenas sent to telecommunications companies seeking toll records associated with members of Congress. Grassley said earlier this year that AT&T, Verizon and T-Mobile provided records connected to lawmakers during the investigation.
Former federal prosecutor and former acting ICE director Jonathan Fahey joined The National News Desk ahead of Smith's testimony to discuss the questions he believes lawmakers should ask.
"What I really want to know, I want to know how much Merrick Garland and the other political actors at the Justice Department were aware of and approved of what he was doing," Fahey said.
Smith was appointed special counsel by then-Attorney General Merrick Garland in November 2022 to oversee investigations involving Trump, including the classified documents investigation and the probe into efforts to overturn the 2020 election results.
Although special counsels are provided a degree of independence, Justice Department regulations state that they remain subject to department rules and oversight by the attorney general.
Fahey argued that distinction should be central to Tuesday's questioning.
"Remember, a lot of times this is sort of framed as this: He's an independent counsel, when in fact he's a special counsel under the supervision of Merrick Garland," Fahey said.
"I'd like to know Garland's involvement every step of the way, from charging to obtaining records, other types of things," he added.
Congressional Republicans have accused Smith and the Biden-era Justice Department of overstepping constitutional boundaries in their investigation. A House Judiciary Committee interim staff report released last week alleged that investigators disregarded separation-of-powers protections when seeking lawmakers' records. Those characterizations represent the Republican-led committees' findings and remain politically contested.
The Senate Judiciary Committee said records released in July showed investigators directly reviewed communications involving 44 lawmakers without first waiting for a separate filter team to determine whether any material should be protected by constitutional or other privileges.
Fahey said that aspect of the investigation raises particularly serious questions because the Constitution's Speech or Debate Clause provides protections for members of Congress related to legitimate legislative activity.
"There are so many places that it really did cross the line," Fahey said of his assessment of the investigation.
"In particular, obtaining these records, including text messages from members of Congress, because, remember, the members of Congress is a separate branch of government, and they're protected under their Speech and Debate Clause," he said.
The Speech or Debate Clause does not provide lawmakers blanket immunity from criminal investigation. Its protections generally apply to legislative acts, and disputes over whether particular communications are covered can involve complicated constitutional questions.
Fahey nevertheless argued that the breadth of the investigation deserves examination.
"If it got out that members of Congress' records were being looked at or other types of things, it could harm them politically," Fahey said.
Smith has previously defended his investigation and prosecution of Trump. In testimony before the House Judiciary Committee in December 2025, Smith said his decisions were based on evidence and law and denied that the prosecutions were driven by politics.
"The decision to bring charges against President Trump was mine," Smith testified at the time. "I made it without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election."
Tuesday's Senate hearing is expected to provide another opportunity for Smith to respond directly to the newer allegations involving congressional communications and investigative procedures.
The conversation with Fahey also turned to a separate controversy unfolding in Northern Virginia involving how prosecutors consider immigration consequences when resolving criminal cases.
A House Judiciary Committee report released Sept. 21 scrutinized Arlington County Commonwealth's Attorney Parisa Dehghani-Tafti and the county's immigration-related policies.
According to the Republican-led committee's report and Dehghani-Tafti's deposition testimony, her office has considered a defendant's Deferred Action for Childhood Arrivals status when resolving some driving-while-intoxicated cases.
Dehghani-Tafti testified that prosecutors have sometimes sought a "lateral" charge that would maintain criminal accountability while avoiding the immigration consequences that a DWI conviction could have for a DACA recipient.
"The policy is to take into consideration that they will not get their status renewed," Dehghani-Tafti said during her deposition, according to the transcript quoted in reports about the investigation. She said prosecutors could seek a resolution that allows a defendant "to get the status renewed while holding them accountable."
Dehghani-Tafti said the practice had come up fewer than 10 times and described the alternative as a comparable charge rather than simply dismissing or necessarily reducing the case. She also said the original charge would remain visible on the defendant's record.
House Judiciary Republicans argue the policy results in different treatment for noncitizens because American citizens do not face immigration consequences from a conviction and therefore cannot receive the same consideration on that basis.
Dehghani-Tafti has rejected the committee's broader conclusions, calling its report politically motivated and disputing its characterization of Virginia law, county policy and her office's approach.
Fahey sharply criticized the practice.
"Why should a local prosecutor be worried about protecting someone's immigration status instead of prosecuting the crime and letting federal immigration law take its course?" Fahey asked.
He argued that DWI cases present a significant public safety concern and that immigration status should not result in more favorable treatment.
"Something like a DWI, this is a public safety issue," Fahey said. "People die because of this, and lives are saved because people are prosecuted because of it."
Supporters of considering immigration consequences in plea negotiations argue prosecutors routinely weigh collateral consequences when seeking proportional outcomes and that a defendant can still face punishment even when a case is resolved under a different charge. Critics contend that allowing immigration status to influence charging decisions creates unequal outcomes for otherwise similarly situated defendants.
Fahey said he believes the Arlington policy will face continued scrutiny.
"A U.S. citizen arrested for drunk driving and treated differently than an illegal immigrant, an illegal immigrant given more leeway — that is going to be a really tough thing for this prosecutor to overcome," Fahey said.
Both controversies are poised to remain in the spotlight this week, with Smith's appearance before the Senate Judiciary Committee giving lawmakers their first opportunity at the hearing to question the former special counsel directly about the latest disclosures involving Arctic Frost.
The committee's hearing is scheduled to begin Tuesday at 9 a.m. in the Hart Senate Office Building.
