US House votes to cancel big payouts for senators’ ‘Arctic Frost’ phone subpoenas
Sen. Lindsey Graham, R-S.C., talks with reporters as he arrives at the U.S. Capitol on Feb. 20, 2025 in Washington, D.C. Graham is one of eight senators who could sue the government over an FBI subpoena of his cell phone call logs, under a law passed to reopen the government. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON — The U.S. House approved legislation Wednesday that would revoke part of a law Congress approved just last week, which for the first time allows senators to sue the federal government, potentially for millions of dollars, if their data is subpoenaed without their knowledge.
The 426-0 vote sent the bill to the Senate, where Majority Leader John Thune, R-S.D., doesn’t appear inclined to put the measure on the floor for a vote, though he hasn’t entirely ruled it out.
“You have an independent, co-equal branch of the government whose members were, through illegal means, having their phone records acquired, spied on if you will, through a weaponized Biden Justice Department,” Thune said. “That, to me, demands some accountability.”
Thune said he understands why several Republican senators were frustrated they didn’t know the provision was added to the funding package that ended the government shutdown.
“I take that as a legitimate criticism in terms of the process,” Thune said. “But I think, on the substance, I believe that you need to have some sort of accountability and consequence for that kind of weaponization against a co-equal branch of the government.”
Thune declined to say if he thinks it’s appropriate for senators to sue for millions in taxpayer dollars for having their phone call records pulled as part of the investigation into President Donald Trump’s efforts to overturn the 2020 presidential election.
“I don’t think there’s anybody that was targeted for whom the money matters,” Thune said. “I think it’s more about the principle.”
GOP Sen. Lindsey Graham of South Carolina, one of eight senators who could benefit, said shortly after the House wrapped up debate he plans to sue Verizon as well as the Department of Justice under the new provision.
“The subpoena that was issued, I think, was fatally flawed. The judicial order saying if you told me (about the subpoena) I would tamper with witnesses or tamper with evidence is legally offensive,” Graham said. “I’m not going to take this crap anymore. I am going into court, and we’ll see what happens.”
Dispute among Republicans
Senate Republicans’ decision to include the lawsuit provision in the stopgap spending law that ended the 43-day government shutdown represented a rare public break between GOP congressional leaders.
Speaker Mike Johnson, R-La., said last week just after the House passed the funding law he was “very angry” the lawsuit language was added to the package without his knowledge or sign off.
“I think that was way out of line. I don’t think that was the smart thing to do. I don’t think that was the right thing to do,” Johnson said at the time. “And the House is going to reverse it. We’re going to repeal that. And I’m going to expect our colleagues in the Senate to do the same thing.”
The provision, which will remain in effect unless the Senate passes the new bill and Trump signs it, allows senators who had their cell phone or other data subpoenaed without their knowledge to sue the federal government for $500,000 “for each instance of a violation.”
The language is retroactive until Jan. 1, 2022, and allows the eight senators who had their cell phone call logs subpoenaed as part of the FBI’s 2023 investigation into efforts to overturn the 2020 election to sue for millions of dollars.
The FBI reportedly obtained data for cell phone use between Jan. 4 and Jan. 7, 2021, for Graham and Sens. Marsha Blackburn and Bill Hagerty of Tennessee, Josh Hawley of Missouri, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming, Dan Sullivan of Alaska and Tommy Tuberville of Alabama, as well as Pennsylvania Rep. Mike Kelly. All are Republicans.
The law allows judges to delay notification for 60 days if the information was pulled as part of a criminal investigation and if telling the senator would endanger someone’s safety or life, lead the lawmaker to flee prosecution, result in someone tampering with or destroying evidence, lead to witness intimidation, place the investigation in jeopardy, or unduly delay the trial.
A judge could keep renewing that 60-day notification delay in criminal investigations if one or several of those elements continued to exist.
Both parties object
House debate on the two-page bill sponsored by Georgia GOP Rep. Austin Scott was broadly bipartisan, though Democrats and Republicans expressed frustration with the lawsuit language for different reasons.
Administration Committee Chairman Bryan Steil, R-Wis., said the “troubling provision” in the spending law must be stricken.
“These provisions are not the right path to address the true concerns over the separation of powers,” Steil said. “Remember, Congress serves the American people, not the other way around.”
Steil said the FBI pulling cell phone call records for senators as part of its investigation into efforts to overturn the 2020 election, known as Operation Arctic Frost, was an abuse of power that should be addressed. But he said allowing senators to sue for millions of dollars in taxpayer money was the wrong way to do that.
“I’m committed to holding those involved accountable. No one benefited by the failures of the Biden administration,” Steil said. “However, that does not mean that elected officials should be financially benefiting from those failures now.”
New York Rep. Joe Morelle, ranking Democrat on the committee, said those eight senators’ cell phone logs were pulled because FBI agents believed the lawmakers “had knowledge of or even participated in efforts to overturn the 2020 presidential election. Efforts that culminated in a violent attack on this very institution.”
Morelle said anyone with a basic understanding of criminal investigations knows that phone records “are among the most routine tools used” to gain a better understanding of events.
“They do not reveal the content of any conversations. They simply show which numbers were called, which numbers called them and when those calls were made,” Morelle said.
“If these Republican senators genuinely believe that their civil liberties were violated or if they are interested in changing the law relating to subpoenas, then they are better positioned than literally anyone on planet Earth to hold hearings, draft legislation and debate proposed changes in the open,” Morelle added. “But that’s not what this is all about. This is about ensuring the law applies to every other American, just not to them.”
Scott said House Republicans voted for the spending law to end the government shutdown, not because they supported the lawsuit provision, which he called “the most self-centered, self-serving piece of language that I have ever seen in any piece of legislation.”
He also rebuked Sen. Graham for saying during interviews that he plans to sue the federal government.
“We have one senator, one, who maintains that this provision is good and is currently saying that he is going to sue for tens of millions of dollars,” Scott said. “I believe my side did the right thing in voting to open up the government. There are a select few people that did the wrong thing in putting language in the bill that would make themselves individually wealthy.”
Bombs, cows, the Postal Service and lawsuits
Graham, who was an Air Force Judge Advocate General officer before entering politics, compared having his cell phone data pulled as part of the investigation to a case he handled earlier in his career after the Air Force “dropped a bomb on a guy’s barn and killed his cow. And he was able to make a claim.”
Graham also compared it to someone suing the government after being hit by a U.S. Postal Service truck, when asked by a reporter what he plans to do with the millions of dollars he will likely receive if he were to win the case.
“You do whatever you want to do with the money if you’ve been wronged,” Graham said.
In addition to filing a lawsuit, Graham hopes to broaden the language so that organizations and private individuals can file suit against the government under the Federal Tort Claims Act if they feel they’ve been wronged similarly.
“I will insist on a vote in the United States Senate to expand the ability of people to make claims that may have been harmed,” Graham said, adding that would likely include the Republican Attorneys General Association, the Republican National Committee and Turning Point USA.
Graham rejected criticisms of the lawsuit provision from fellow GOP lawmakers, saying it doesn’t represent “self-dealing.”
“I understand politics, but I’m not worried about that. I’m worried about getting the right outcome,” Graham said. “I mean, if you don’t want me to sue the government, that’s up to you. I’m going to sue, whether you like it or not. I’m not going to put up with this anymore, and people in my spot shouldn’t have to deal with this in the future.”