Last edited Tue Nov 11, 2025, 12:46 AM - Edit history (3)
Worse, it apparently allows him to be individually sued for $500,000 if he did not give Senators notice of the subpoena within 60 days (he did not let them know until this year). And that liability would attach regardless of whether the subpoena was properly obtained. https://www.nytimes.com/2025/11/10/us/politics/senators-shutdown-smith-phone-searches.html
Because the provision is retroactive to 2022, it would appear to make eligible the eight senators whose phone records were subpoenaed by investigators for Smith as he examined efforts by Trump to obstruct the certification of the results of the 2020 presidential election on 1/6/2021.
Each violation would be worth at least $500,000 in any legal claim, according to the bill language. The bill would also sharply limit the way the government could resist such a claim, taking away any government claims of qualified or sovereign immunity to fight a lawsuit over the issue.
The Republican senators whose phone records were subpoenaed as part of the investigation were: Lindsey Graham of South Carolina, Marsha Blackburn and Bill Hagerty of Tennessee, Josh Hawley of Missouri, Dan Sullivan of Alaska, Tommy Tuberville of Alabama, Ron Johnson of Wisconsin and Cynthia Lummis of Wyoming. Representative Mike Kelly of Pennsylvania also had his phone records subpoenaed but would not be eligible because he is a member of the House. https://www.nytimes.com/2025/11/10/us/politics/senators-shutdown-smith-phone-searches.html
But these notice requirements did not exist in 2023. Making Smith retroactively liable for $500,000 per senator ($4M total!) is a blatant violation of due process. A retroactive civil law can be challenged under the Due Process Clause of the US Constitution for creating unforeseen liability for past actions, which is the same reasoning for the Constitution’s ban on retroactive (ex post facto) criminal laws.
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