Senate Majority Leader John Thune thought he was giving Republicans a gift when he secured a provision in the shutdown-ending government funding package that could award hundreds of thousands of dollars to senators subpoenaed as part of former special counsel Jack Smith’s investigation into President Donald Trump.
It turns out, several of them don’t want it.
Of the eight known Senate Republicans whose phone records were subpoenaed as part of Smith’s probe into Trump’s 2020 election interference, only one so far — Sen. Lindsey Graham of South Carolina — has announced definitive plans to take advantage of the new legislative language that would allow senators to sue the federal government for $500,000 or more if they discover their electronic records were seized without notification.
“Oh definitely,” Graham said at a news conference after the passage of the government funding bill. “And if you think I’m going to settle this thing for a million dollars — no. I want to make it so painful, no one ever does this again … I’m going to pursue through the court system — remedies.”
The others, however, were less enthusiastic or more opaque about their intentions. In public comments, social media posts or statements to POLITICO over the past few days, the seven remaining Senate Republicans declined to publicly commit to seeking compensation for being singled out by Smith — as the Democrats pummel the GOP for endorsing a taxpayer-funded windfall and fellow Republicans in both chambers decry the provision as poorly conceived.
“I think the Senate provision is a bad idea,” said Sen. Josh Hawley (R-Mo.) in a statement. “There needs to be accountability for the Biden DOJ’s outrageous abuse of the separation of powers, but the right way to do that is through public hearings, tough oversight, including of the complicit telecomm companies, and prosecution where warranted.”
It could all soon be moot. Republicans in the House were enraged over the provision’s inclusion, and Speaker Mike Johnson responded by promising to hold a vote for a bill that would repeal the legislative language. The effort is expected to pass overwhelmingly with bipartisan support.
Johnson told reporters Wednesday that he had spoken with Thune about the issue earlier in the day, and that he communicated his disapproval of his Senate counterpart’s maneuvering.
It’s not clear what Thune plans to do with the bill, assuming it passes the House. A person familiar with the provision’s introduction into the funding bill, who was granted anonymity to discuss private conversations, said that Senate Republicans requested that Thune include the language in the legislation.
The person cited a “strong appetite” among the GOP to pursue accountability for the so-called Arctic Frost investigation, a Biden-era probe that Republicans say constituted a weaponization of the Justice Department.
But as it turns out, the provision in the funding bill related to Smith’s probe is already creating political liability for Senate Republicans. Rep. John Rose (R-Tenn.), who is running for governor of his state next year, quickly introduced legislation in the House that would reverse the provision. His challenger for the Republican nomination, Sen. Marsha Blackburn, later said she would vote for a bill to undo the language — but expressed a desire to take some legal recourse as a Smith target.
“Senator Blackburn’s plan has always been to seek a declaratory judgment — not monetary damages — to prevent leftists from violating the constitutional rights of conservatives,” a spokesperson for Blackburn said in a statement.
Even Sen. Ron Johnson (R-Wis.), who is co-leading the investigation into Smith’s probe with Senate Judiciary Chair Chuck Grassley (R-Iowa), said that while he stood by the provision he wouldn’t act on the cash opportunity.
“I have no plans at this time,” he said in a statement. “If I did sue, it would only be for the purpose of using the courts to expose the corrupt weaponization of federal law enforcement by the Biden and Obama administrations. With the full cooperation in our congressional investigations from the Trump DOJ and FBI, that shouldn’t be necessary.”
Sen. Bill Hagerty (R-Tenn.) said he would not seek damages nor did he want taxpayer money.
Sen. Dan Sullivan (R-Alaska) tried to distance himself from the provision’s origin story, with a spokesperson saying he only learned about the payout language while reading the bill. He would support a House measure to repeal it, the spokesperson said.
A spokesperson for Sen. Cynthia Lummis also emphasized that the Wyoming Republican did not play a role in the provision’s formulation — but added that the lawmaker supported the language.
“We must not allow the politicization of federal agencies to become routine,” the spokesperson said. “Liquidated damages provisions are commonly used and this provision is the only way to hold Jack Smith and wrongdoers accountable.”
A spokesperson for Sen. Tommy Tuberville (R-Ala.), another gubernatorial aspirant, pointed to the lawmaker’s statement on social media, noting that he would “sue the living hell out of every Biden official involved” if Smith was not jailed and Judge James Boasberg — who approved the effort to prevent senators from being notified of the subpoena — was not impeached.
The spokesperson wasn’t clear on whether Tuberville intends to sue the federal government under the provision in the funding bill.
Graham, during his press conference this week, said he believed the language would benefit everyone.
“This wasn’t about investigating me or other Senators for a crime — it was a fishing expedition,” Graham said. “I’m going to push back really hard … that will protect the Senate in the future.”
Meredith Lee Hill contributed to this report.
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