Senator who sued Jack Smith says she thinks he should be criminally prosecuted too

Marsha Blackburn, the sitting senator from Tennessee and GOP gubernatorial candidate who sued Jack Smith for violating her civil rights, says she believes the ex-prosecutor should also face criminal prosecution and be compelled to return the personal records he took from lawmakers, donors and Trump supporters.

"I think that it would be a good thing for him to face prosecution," Blackburn told the John Solomon Reports podcast this week just hours before she filed her lawsuit alleging Smith was never lawfully a special counsel and therefore violated her rights as a member of Congress by collecting her phone records.

"I think it would be a good thing for him to have to reveal who all was in on this with him, and I think it would be a very good thing for him to have to return all these records to the people that he [has] victimized," she said.

"Worse than Watergate": Judiciary Committee

Blackburn is part of the Senate Judiciary Committee that on Tuesday laid out evidence alleging that Smith conducted a political espionage campaign masquerading as a criminal investigation codenamed Arctic Frost to collect dirt and intelligence on hundreds of Trump supporters, GOP lawmakers and conservatives who were never accused of or charged with any wrongdoing.

The Committee detailed Smith's actions on its webpage, calling it "worse than Watergate."

Blackburn did not attend Tuesday's Senate interrogation of Smith but announced her lawsuit on Wednesday. The suit seeks only $1 in damages but asks to hold Smith liable in his personal capacity by arguing that a federal judge found that former Attorney General Merrick Garland never lawfully appointed Smith as special counsel and, therefore, Smith conducted his contested actions as a private citizen. The complaint does not address the issue of whether Smith has immunity, but it's likely that issue will come up when Smith files his papers.

The lawyer who filed the lawsuit told the John Solomon Reports podcast on Wednesday the suit makes no claims of criminality, leaving that for others such as the Justice Department to decide, but does make a novel argument about Smith's personal culpability.

"It's so disappointing, you know, as a former DOJ attorney, to see this sort of rogue activity by someone pretending to be a special counsel or posing as a federal prosecutor, which is really what Jack Smith was doing," Blackburn said, quoting Mark Chenoweth, the president and chief legal officer of the New Civil Liberties Alliance (NCLA).

Stripped her of her constitutional right to challenge the subpoena

In a statement, the NCLA said that "While purporting to act as Special Counsel, Smith and others in the DOJ, FBI, Special Counsel’s office, and Public Integrity Section agreed to subpoena Senator Blackburn’s cell phone toll records — revealing whom she spoke with, and when, and for how long."

Smith also sought and obtained a non-disclosure order from the Court, while withholding from the presiding judge the material fact that the subpoena sought the records of a sitting US senator. That non-disclosure order required the senator’s cell phone provider, Verizon, to keep the subpoena secret. The non-disclosure order prevented Senator Blackburn from learning that her cell phone records had been subpoenaed, and thereby stripped her of her constitutional right to challenge the subpoena under the Speech or Debate Clause of the Constitution, which, NCLA argues, protects legislative materials from compelled disclosure.

Compelling evidence of intentionality

"The appointments clause of the Constitution requires for principal officers, which we argue that Jack Smith was, that they have to be appointed by the president and confirmed by the Senate. Neither one of those things happen, even if he was an inferior officer, John, Congress still, under the appointments clause, has to create the position for him to fill. And Congress never created the special counsel position. This is something Merrick Garland came up with on his own. So this whole investigation, this whole Arctic Frost investigation, to the extent that Jack Smith was involved, was polluted by this unlawful, unconstitutional appointment," Chenoweth said.

Chenoweth said the senator's lawsuit provides some compelling evidence of intentionality by Smith and his team.

"Smith talked to the Public Integrity Section at the Department of Justice. They alerted him to the potential speech and debate clause issue, and they decided to withhold that material fact of Senator Blackburn's identity from the federal district judge. So when they went to get the subpoena from the federal district judge in DC, they did not tell him that they were seeking the records of a sitting US senator.

"Wilfully and intentionally false statements"

Smith was accused in July of giving false testimony by House Judiciary Committee Chairman Jim Jordan, R-Ohio, for allegedly making "willfully and intentionally false statements" when testifying before Congress last December.

On Tuesday, Smith was further accused by Republicans on the Senate Judiciary panel of improperly using his prosecution powers to collect donor checks from Trump supporters, journalist contacts with sources and text and phone data from members of Congress.

For his part, Smith has steadfastly denied wrongdoing and said he would pursue a prosecution against President Donald Trump again because he believed the evidence supported it and the evidence-gathering actions he took were lawful.

Smith continues to insist his actions were not partisan

"I personally find it very hard to understand how our investigation can be viewed as partisan when the strongest witnesses, the people who were the difference between the rule of law standing and not in our case, were Republicans," Smith told senators during sometimes brusque testimony.

Smith snooped on emails, phone records and donors' checks, Blackburn says

"Instead of looking into issues that would have been in his jurisdiction, he was getting telephone records. He was getting emails. We found out today nearly 5,000 individuals sent checks to President Donald Trump. [Smith] got copies of those checks," she said.

"We had 102 Tennesseans who wrote checks to the president's campaign, and Jack Smith was pulling those copies, and then he was setting up a file and following these individuals, or Lord knows what he was planning to do with it if they [Biden Democrats] had been able to keep the White House. He was on a witch hunt, and he was determined to find out who was talking to the president, what they were saying."

Criminal conspiracy to use law enforcement to hurt Trump politically, former G-man says

Retired FBI Special Agent Jonathan Gilliam told the Just the News, No Noise television show he would never have engaged in some of the evidence-gathering tactics Smith's team launched against lawmakers and political donors for activity that was protected by the Constitution.

Gilliam added that he believes prosecutors could make a criminal case against Smith or his team as part of alleging an ongoing criminal conspiracy to use law enforcement to hurt Trump politically over a period of time that included the discredited Russia collusion case to Smith's prosecutions.

"We can show that the multiple things that they did were contrived, were made up, or falsified, and that they were done for a reason to go after President Trump to further their ideology, their politics, or their criminal enterprise," he said. "I think that evidence is there, and it's already been proven in some cases that if they wanted to go after Jack Smith."

"If (FBI Director) Kash Patel actually started looking at this criminal enterprise, the cards would fall if they just peeled back that onion a little bit. I think it's clearly evident," he added.

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