Newly uncovered documents reveal that one of former special counsel Jack Smith's top deputies advocated for repealing a key constitutional protection for lawmakers.
"I'm an advocate for repealing the clause but absent that, we're stuck with it and the way it's been interpreted," J.P. Cooney, who served as Smith's principal deputy prosecutor, wrote in a 2021 exchange first obtained by the Washington Examiner. He was speaking with Molly Gaston, another prosecutor who would go on to join Smith, about the Constitution's speech or debate clause.
The speech or debate clause of the Constitution protects members of Congress from civil or criminal prosecution stemming from their legislative actions or speech. In theory, it shields the legislative branch from being coerced by the executive branch under threat of prosecution.
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"Records provided to my office revealed that Jack Smith's right-hand man, J.P. Cooney, flaunted his disdain for the speech or debate clause, which protects the separation of powers," Senate Judiciary Committee Chairman Sen. Chuck Grassley, R-Iowa, told Fox News Digital.
"Later, Cooney and Smith violated this constitutional safeguard by secretly obtaining toll records and text messages from dozens of members of Congress."
"Jack Smith and his team disgracefully tore up the Constitution throughout his partisan investigation. That's what happens when runaway Democrat government is in power," Grassley added.
Smith and his staff were responsible for investigating efforts to overturn the 2020 presidential election.
Cooney's position on the speech or debate clause was a point of contention during Smith's Tuesday hearing on Capitol Hill.
"When you became special counsel, what direction did you give your staff to handle speech or debate and attorney-client material? Did you issue any directives? If so, to whom? Please explain," Grassley asked Smith, citing Cooney's support for repealing the clause.
"So, with respect to the speech or debate clause, first, we took our obligations seriously under the speech or debate clause. It's, in my view, an important part of the separation of powers," Smith responded.
"I had members of my staff who were very familiar with the clause, having worked in the public integrity section for years. We also, when it was appropriate or required, consulted with the public integrity section regarding application of that clause."
Grassley dismissed Smith's defense by arguing that the behavior of his staff contradicted his statement.
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Republicans have argued Cooney's views foreshadowed Smith's later use of subpoenas for lawmakers' communication records.
Smith's team obtained and reviewed communications involving dozens of lawmakers, while separate subpoenas sought telephone records associated with a smaller group of members of Congress.
Among the lawmakers whose messages with White House personnel were obtained and reviewed were senators Chuck Grassley, R-Iowa; Ron Johnson, R-Wis.; John Cornyn, R-Texas; Josh Hawley, R-Mo.; Mike Lee, R-Utah; Cory Booker, D-N.J.; and the late Lindsey Graham, R-S.C.
"In 2023, Cooney, Gaston, Windom and Ray Hulser were given warnings that subpoenaing congressional information could violate the speech or debate clause," Grassley previously said.
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Cooney complained about statutory restrictions surrounding efforts to obtain lawmakers' telephone records during a separate 2021 investigation, at one point calling the language "ridiculous," according to previously released messages.
When asked about Cooney's position on the speech or debate clause, Democracy Forward, the advocacy organization where he now works, referred Fox News Digital to a press release announcing its hiring of both him and Gaston.
Cooney and Gaston said in the release that they had spent years "holding the most powerful accountable for public corruption and civil rights abuses" and said they joined Democracy Forward amid what they characterized as the Trump administration's "de-prioritization" of public corruption enforcement.
While Republicans have characterized Smith's investigation as a political witch hunt, he maintains that he acted impartially and in the best interests of the United States.
Proponents argue that Smith's investigation was necessary because the allegations involved conduct at the core of constitutional government, including efforts to overturn the 2020 election and obstruct the lawful transfer of power, as well as the retention and alleged concealment of highly classified documents on part of President Donald Trump.
Fox News Digital reached out to Gaston & Cooney PLLC Wednesday.
