Former FBI official calls for accountability as Jack Smith faces Senate over Trump probe

Former special counsel Jack Smith is set to face senators Tuesday as the Senate Judiciary Committee examines the scope and methods of the federal investigation that led to his prosecution of President Donald Trump over efforts to challenge the 2020 election results.

The Republican-led committee scheduled a hearing titled "Oversight of Jack Smith's Abuse of Authority and the Targeting of Republicans and Related Matters," with Smith expected to testify publicly under oath. Democrats on the committee say Smith has sought an opportunity to publicly defend his work and accuse Republicans of mischaracterizing a legitimate criminal investigation.

Much of the hearing is expected to focus on "Arctic Frost," the FBI investigation that preceded Smith's appointment as special counsel and ultimately became part of his election-related investigation.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, has released records that he says show the investigation eventually encompassed more than 400 Republican individuals and organizations. Grassley has characterized Arctic Frost as a politically motivated "fishing expedition," an allegation Smith and Democrats dispute.

Former FBI Special Agent in Charge and former Chicago Police Superintendent Jody Weis joined The National News Desk ahead of the hearing and sharply criticized Smith's record.

Weis pointed to Smith's previous tenure leading the Justice Department's Public Integrity Section and the federal prosecution of former Virginia Gov. Bob McDonnell.

McDonnell was convicted on federal corruption charges in 2014, but the Supreme Court unanimously vacated his convictions in 2016 after concluding that the government's interpretation of what constituted an "official act" was overly broad. The ruling did not find that Smith personally committed misconduct in the prosecution.

"What really got me with Jack Smith, though, was the Mar-a-Lago raid," Weis said.

Weis alleged that evidence was "staged" in a photograph showing classified-document cover sheets at Trump's Mar-a-Lago estate.

The photograph became a focus of political controversy after the FBI's August 2022 search. Prosecutors said placeholder sheets were used during the evidence-processing procedure to mark where classified documents had been removed from boxes, rather than to falsely create classified evidence.

Weis also pointed to U.S. District Judge Aileen Cannon's 2024 decision dismissing the classified-documents case against Trump after concluding that Smith's appointment violated the Constitution's Appointments Clause. The Justice Department appealed that ruling before Smith ultimately dropped the prosecution following Trump's 2024 election victory, citing longstanding Justice Department policy against prosecuting a sitting president.

"And now you look at that Arctic Frost investigation," Weis said. "He's looking at members of Congress — who they were, where they were, even when they made their phone calls. Hopefully this hearing today will bring this all to light."

Records released by Grassley's committee show Smith's team obtained and reviewed government text messages involving 44 current and former members of Congress, including both Republicans and Democrats. The messages came from records obtained from the National Archives as part of investigators' examination of communications involving Trump administration officials.

The committee says Smith's team reviewed the messages without waiting for a filter team to determine whether potentially privileged congressional communications should first be separated, raising questions about protections under the Constitution's Speech or Debate Clause.

A separate part of the investigation involved phone records.

Grassley's oversight found that telecommunications companies received 84 subpoenas connected to Arctic Frost and Smith's investigation, including 10 subpoenas seeking toll records associated with 20 current or former Republican members of Congress.

Those toll records did not include the content of calls. They included information such as when calls occurred, who was contacted and how long the calls lasted. In some instances, records also contained general location information.

Weis argued that the breadth of the investigation is one of the central issues senators should examine.

That characterization is disputed.

Smith has maintained that his investigation followed evidence of alleged criminal conduct surrounding efforts to overturn the 2020 election and the events leading up to Jan. 6, 2021. Democrats have also noted that Smith sought to testify publicly about his investigation for months before Tuesday's hearing.

Sen. Dick Durbin, D-Ill., the committee's ranking Democrat, said ahead of the hearing that Smith was a career prosecutor tasked with investigating Trump's efforts to overturn the election and his handling of classified government documents.

Smith ultimately charged Trump with four federal counts in the election case and 40 counts in the classified-documents prosecution. Neither case reached a jury verdict.

Weis said another question is who approved investigative steps involving members of Congress.

"Normally the Public Integrity Section of DOJ would give the approval, with usually consultation from the deputy attorney general," Weis said.

Grassley's committee previously released documents it says show then-Attorney General Merrick Garland, then-Deputy Attorney General Lisa Monaco and then-FBI Director Christopher Wray personally approved the opening of Arctic Frost in 2022, before Smith was appointed special counsel.

Weis argued the normal safeguards failed because senior officials were opposed to Trump.

"The normal safeguards weren't in place because they were all against him," Weis said.

That is Weis' assessment. The existence of investigative approvals does not itself establish that Garland, Monaco, Wray or Smith acted for political reasons.

Smith has consistently rejected allegations that his prosecutions were politically motivated, maintaining that his charging decisions were based on the facts and federal law.

Weis said any potential misconduct uncovered by congressional oversight should be handled through the same investigative process used in other criminal cases rather than through assumptions of guilt.

"If there's a reasonable suspicion of a crime, there should be an investigation," Weis said. "If that investigation shows that there's actual probable cause, then there should be an indictment."

He stressed that any review should follow the evidence regardless of its outcome.

"But we have to have accountability," he added. "This cannot happen again."

Weis predicted Smith would strongly defend his conduct when questioned by senators and repeatedly point to the circumstances surrounding Jan. 6 and the effort to overturn the 2020 election.

"I think there will be a lot of denials," Weis said.

Smith is likely to face sharply different lines of questioning from Republicans and Democrats.

Republicans are expected to press him over the breadth of Arctic Frost, subpoenas involving lawmakers, constitutional protections for members of Congress and the level of involvement by senior Biden-era Justice Department officials. Grassley's committee has spent months releasing documents and holding hearings examining those issues.

Democrats, meanwhile, are expected to focus on the evidence that led to Trump's indictments and Smith's contention that the former president was not prosecuted because of his politics. Durbin has accused Republicans of using the committee's Arctic Frost investigation to rewrite the history of the 2020 election and Jan. 6.

Weis said senators should follow the evidence that emerges from the hearing and refer any credible evidence of criminal wrongdoing to the Justice Department.

"Hopefully they'll keep asking the right questions," Weis said, "and then turn it over to the DOJ if there's reason to."

The Senate Judiciary Committee hearing is scheduled for 9 a.m. Tuesday in the Hart Senate Office Building.