Documents obtained by the Washington Examiner reveal that J.P. Cooney, the principal deputy prosecutor under former special counsel Jack Smith, advocated for eliminating the Constitution’s Speech or Debate Clause, which shields lawmakers from prosecution over legislative activities. The disclosure emerged during Smith’s contentious Senate testimony about his investigation into efforts to challenge the 2020 presidential election.
Constitutional Protection Under Fire
In a 2021 message exchange with fellow prosecutor Molly Gaston, Cooney wrote that he advocated for repealing the clause, adding that without repeal, investigators remained bound by existing interpretations. The Speech or Debate Clause protects members of Congress from civil or criminal prosecution stemming from their legislative actions and speech. The constitutional provision exists to prevent the executive branch from coercing legislators through threats of legal action, maintaining the separation of powers between government branches.
Senate Judiciary Committee Chairman Chuck Grassley told Fox News Digital that records provided to his office showed Smith’s deputy flaunting disdain for the constitutional safeguard. The Iowa Republican charged that Cooney and Smith later violated this protection by secretly obtaining toll records and text messages from dozens of congressional members. Grassley characterized the entire investigation as partisan overreach that disregarded constitutional boundaries.
Heated Senate Exchange
During Tuesday’s Capitol Hill hearing, Grassley pressed Smith on whether he issued directives to staff regarding the Speech or Debate Clause and attorney-client materials. Smith defended his team’s conduct, stating they took their constitutional obligations seriously and consulted with the public integrity section when appropriate. He emphasized his view that the clause represents an important component of separation of powers and noted that several staff members possessed years of experience handling such matters.
Grassley dismissed Smith’s explanation, arguing that the actions of Smith’s prosecutors contradicted his testimony. The special counsel’s team obtained and reviewed communications involving numerous lawmakers, including Senators Chuck Grassley, Ron Johnson, John Cornyn, Josh Hawley, Mike Lee, Cory Booker, and the late Lindsey Graham. Separate subpoenas targeted telephone records from a smaller congressional group. According to Grassley, prosecutors received warnings in 2023 that subpoenaing congressional information could violate the Speech or Debate Clause.
Broader Implications
Previously released messages show Cooney complained about statutory restrictions on obtaining lawmakers’ telephone records during a separate 2021 investigation, calling the protective language ridiculous. Both Cooney and Gaston now work for Democracy Forward, an advocacy organization that referred questions to a press release announcing their hiring. Republicans argue that Cooney’s expressed views predicted how Smith’s investigation would handle congressional protections, raising concerns about executive branch respect for legislative independence and constitutional safeguards designed to preserve governmental balance.
