Understanding the Arctic Frost controversy

Brett Tolman may have avoided FBI officers examining his personal call records, but his employer didn’t.

“I would describe it as, I think, a perfect example of when the government grows too strong, too powerful, and they no longer want to follow the rules, then what do they do?” Tolman said.

Tolman, a former federal prosecutor, is chair of American justice at the America First Policy Institute. Many individuals at the conservative think tank have had a close relationship with President Donald Trump and served in his first administration.

In 2022, the U.S. Department of Justice launched Arctic Frost, an effort to investigate then-former President Donald Trump and his allies in connection with alleged efforts to overturn the 2020 presidential election. As part of the probe, the Federal Bureau of Investigation quietly investigated the America First Policy Institute, along with other conservative organizations and members of Congress.

Critics say DOJ special counsel Jack Smith’s decision to look into phone records and other information about Republican lawmakers and conservative groups demonstrates the political weaponization of the FBI. But others say the Justice Department followed ordinary operating procedures, even if its agents did so imperfectly.

What happened? Last month, and after years of requesting DOJ documents, Sen. Chuck Grassley, R-Iowa, discovered that special counsel Jack Smith subpoenaed the phone records of several Republican members of Congress and banking information connected to dozens of conservative organizations. Grassley and others say the findings point to wrongdoing “worse than Watergate.”

According to Grassley, the FBI investigated at least eight Republican senators, one Republican House member, and more than 400 other conservative organizations and individuals. “In 2023, it sought and obtained cell phone ‘tolling data’ for their devices even though they weren’t under investigation. This is a serious breach of the constitutional separation of powers,” Grassley said in a statement on his website.

The lawmakers have all issued statements condemning the FBI’s examination of their phone data. The senators and representative who had their records examined are:

• Sen. Lindsey Graham, R-S.C.

• Sen. Bill Hagerty, R-Tenn.

• Sen. Josh Hawley, R-Mo.

• Sen. Dan Sullivan, R-Alaska

• Sen. Tommy Tuberville, R-Ala.

• Sen. Ron Johnson, R-Wis.

• Sen. Cynthia Lummis, R-Wyo.

• Sen. Marsha Blackburn, R-Tenn.

• Rep. Mike Kelly, R-Penn.

What’s the big deal? The U.S. Constitution in most cases requires law enforcement agencies to get a warrant before examining U.S. residents’ private information. This requires asking a judge to sign off on the investigation.

But in Arctic Frost, a crucial step was removed from that process, said Katie Pavlich, a visiting fellow at the Heritage Foundation. “Operation Arctic Frost was a situation where a politically motivated FBI assistant special agent was working with the FBI to essentially conduct illegal searches on Trump administration officials and on senators without their knowledge and without the permission of a judge,” Pavlich said, referring to Smith, whom the DOJ commissioned as a third-party overseer to run its investigations into Trump. “That is not allowed in our country.”

Was this really illegal? In a letter to Sen. Grassley’s office, Smith’s lawyers insisted their client did nothing wrong by obtaining lawmakers’ phone records. While he doesn’t approve of the FBI’s actions, Stanley Brand, a senior fellow at Penn State Dickinson Law and a former counsel to the House of Representatives, agreed those actions didn’t appear to violate federal law. Federal authorities routinely carry out pre-investigations—meant to determine whether they need to call a grand jury and commence a full investigation.

“There’s this whole debate … about something we lawyers call ‘predication.’ That is, what does it take to commence an inquiry into potential criminal activity?” Brand said. “It’s not an exact science. It has to be something credible, but it doesn’t have to necessarily even rise to the level of probable cause.”

If the FBI finds enough evidence of potential wrongdoing to open a comprehensive investigation, then it does so, Brand explained. The aspect of Arctic Frost that bothers Brand is that it seemed to go against the Constitution’s separation of powers doctrine. Article I, Section 6, says of lawmakers that “for any speech or debate in either House, they shall not be questioned in any other place.”

“The court has interpreted ‘speech or debate’ to not include just literal speech but anything they do in the legislative sphere—voting, debating, having a hearing, writing a report, deliberating with each other, acting on matters that the Constitution places within their jurisdiction—including certification of the presidential election,” Brand said. “So, where this gets murky for me is when they start subpoenaing members with respect to what members are doing in preparation for the electoral college certification, which is part of their job.”

Critics also take issue with the investigation’s lack of transparency. Lawmakers didn’t know the FBI had examined their phone records until Grassley released his findings years later.

“Why were they monitoring phone numbers and what exactly were they looking for?” Pavlich said. “And why did they have to do it in secret, under the guise of a special counsel with a special name of an operation, without letting the senators know that they were looking at their phone records?”

Was it a Fourth Amendment violation? The Fourth Amendment to the U.S. Constitution prevents the government from carrying out “unreasonable searches and seizures” of Americans’ information and assets. But Cheryl Bader, a former federal prosecutor who teaches at Fordham University’s School of Law, said that looking into basic information about phone records doesn’t fall under that description. Obtaining information about when a call happened or which number was called is not, legally speaking, a “search” that requires a warrant, she explained.

The Supreme Court ruled in 1979’s Smith v. Maryland that obtaining pen registers—which collect information about phone calls that does not include the content of the calls themselves—are not “searches” of the type the Fourth Amendment says need a warrant.

Bader said Fourth Amendment violations take place daily across the U.S. court system, but she argued that Arctic Frost wasn’t an example of such a violation. To get a pen register, a prosecutor simply needs to show a judge that the information that the pen register would yield is relevant to an investigation.

When prosecutors ask for pen registers, judges tend to be very amenable—as federal law requires them to be, Bader said. When prosecutors try to obtain a search warrant, however, judges tend to be more hostile toward the request.

Is this likely to happen again? The FBI targeted a plethora of conservative organizations in addition to Trump administration officials and members of Congress. Brett Tolman from America First Policy Institute said the FBI was able to carry out such an investigation because of the powers the federal government gave it in the wake of the 9/11 terrorist attacks.

After 9/11, the FBI transformed into a hybrid crime-fighting and intelligence agency to combat terrorism threats, Tolman explained. That seemed like a good idea at the time, he said, because everyone believed there would be guardrails within the larger Department of Justice that would prevent those intelligence agency functions from being weaponized against Americans. But that isn’t how intelligence gathering works.

“In order to gather intelligence, you’re not always thinking about the Fourth, Fifth, and Sixth Amendments of the Constitution and due process and the protections that citizens have in this country,” Tolman said. He argued Arctic Frost shows the Department of Justice lacks appropriate safeguards to keep FBI agents from carrying out politically motivated investigations.

“You have to have more serious guardrails in terms of what role does the FBI have and what standards [are] required for them to open investigations,” Tolman said.