A retired federal agent who worked on Special Counsel Jack Smith's investigation of President Trump told Congress that prosecutors never told him the phone records he was gathering under grand jury subpoenas belonged to sitting lawmakers, a disclosure that would have prompted him to flag the matter to his supervisors.
Brian Burnett, a veteran special agent with the Justice Department's Inspector General office, made the admission in a transcript released by the House Judiciary Committee as part of its ongoing review of Smith's probe, code-named "Arctic Frost." Burnett spent decades at the DOJ watchdog before retiring in late 2024. During his time on Smith's team, he helped gather long-distance toll data, records showing who called whom and when, through grand jury subpoenas. He said he carried out the work without knowing whose phone numbers he was pulling.
The problem: at least one of those numbers apparently belonged to Rep. Jim Jordan, who at the time was the top Republican on the House Judiciary Committee and is now its chairman. Burnett's transcript was one of six interviews with former Smith associates that the committee published, according to Just the News.
Congressional investigators pressed Burnett directly on whether Smith's prosecution team ever informed him that the subpoena he was serving targeted the ranking member of the Judiciary Committee. His answer was flat:
"No. I don't have any recollection of that."
Burnett told the committee he did not connect the dots until well after he left government. He said he saw news coverage discussing Jordan's toll records and then found a subpoena bearing his own name posted online.
"It was not until I had been retired and this was on the news and there was conversation about Mr. Jordan's toll records being subpoenaed and then there was a subpoena that came up on the internet. So I was only assuming -- that had my name on it -- that that was his number. But I do not know, as we sit here today, if that was his number or not."
Even now, Burnett said he cannot confirm with certainty that the number belonged to Jordan. But the broader pattern he described is clear: prosecutors handed him phone numbers to subpoena and never told him the subscribers were members of Congress.
When asked whether knowing the target's identity would have given him pause, Burnett did not hesitate.
"It would've been something I would've brought up to my supervisor, if there was a different process or something we needed to be doing if we were going to do that. But I was not aware."
That answer matters. The Constitution's Speech and Debate Clause shields members of Congress from executive-branch interference in their legislative duties. The Separation of Powers provisions add a second layer of protection. The House Judiciary Committee has cited both as constitutional barriers that Smith's team may have breached by collecting lawmakers' communications data without following special protocols.
Jordan's phone data was not an isolated case. The Arctic Frost investigation, which centered on the Jan. 6 Capitol riot, gathered long-distance phone records for more than a dozen members of Congress. Ex-House Speaker Kevin McCarthy was among them. The probe also collected text messages from 44 lawmakers, a scale that goes well beyond a narrow criminal inquiry into one individual.
Some of those records were seized before Smith was formally named special counsel. Many more came after his appointment. The committee has not publicly identified the full list of lawmakers whose data was taken, and it remains unclear whether any of them were notified at the time.
Burnett's testimony also revealed a second confrontation inside the investigation, one where a supervisor drew a harder line. Smith's prosecution team wanted Burnett's unit to seize Rep. Scott Perry's cell phone outright, using a search warrant rather than a subpoena for records.
"I believe my supervisor -- as far as that team, [the] prosecution team, wanted us to go and seize Representative Perry's cell phone. And then it came down from the IG, you know, absolutely not. We were not going to do that."
The IG supervisor shut it down on what Burnett described as legal grounds. The specific concerns were not detailed in the transcript, but the refusal itself is telling: at least one person inside the DOJ watchdog recognized that grabbing a congressman's personal phone raised serious constitutional questions. The prosecution team, by Burnett's account, did not share that concern, or at least did not volunteer the information that would have forced the question.
The transcript release fits into a broader pattern of oversight by Jordan's committee. Jordan has already referred Jack Smith for criminal prosecution, alleging false testimony related to the accessing of lawmakers' text messages. That referral rested on the gap between what Smith's team told Congress about its data-collection practices and what internal DOJ records later showed.
Burnett's testimony adds a new dimension. It is one thing to argue that prosecutors broke the rules. It is another to hear from the agent who carried out the subpoenas that he was deliberately kept in the dark about what he was doing, and that he would have raised a red flag if he had known.
Jordan has also demanded the FBI hand over evidence from a separate operation he characterized as an assault on congressional oversight, part of a sustained effort to force federal law enforcement to account for its conduct during the Trump-era investigations.
The five other transcripts released alongside Burnett's have not been publicly detailed. The committee has not identified the other former Smith associates who were interviewed, and neither Smith's team nor the DOJ has publicly responded to Burnett's account or the committee's constitutional concerns.
Federal investigations routinely compartmentalize information. Agents are sometimes told only what they need to know to carry out a specific task. Prosecutors might argue that keeping Burnett unaware of the subscriber's identity was standard operational security, not an attempt to dodge constitutional safeguards.
But Burnett himself undercut that defense. He said the identity of the subscriber mattered, that it would have triggered a conversation about "a different process or something we needed to be doing." The Constitution requires that process. The Speech and Debate Clause exists precisely to prevent the executive branch from using its investigative powers to rifle through a legislator's communications without extraordinary justification and procedure.
If prosecutors knew they were subpoenaing a senior member of the Judiciary Committee's phone records and chose not to tell the agent executing the subpoena, that is not compartmentalization. That is a decision to keep the one person most likely to raise a constitutional objection from having the information he needed to raise it.
The committee's review of the Arctic Frost probe is ongoing. Other federal investigations into alleged government misconduct, including a grand jury probe tied to the Trump-Russia collusion narrative, have also drawn scrutiny for the way intelligence and law enforcement agencies handled politically sensitive targets.
Several critical questions remain unanswered. Were any of the other lawmakers whose records were swept up ever notified? Did anyone on Smith's team document the legal basis for bypassing the usual protections for congressional communications? And why did the prosecution team press to seize Perry's phone after the IG had already drawn a constitutional line in the sand?
Jordan's committee has the transcripts. It has the subpoena power and the institutional will to keep pulling the thread. Whether the DOJ cooperates or stonewalls will say as much about the department's commitment to accountability as anything in the transcripts themselves.
When the agent doing the work says he would have spoken up, and prosecutors made sure he never got the chance, the system did not fail by accident. Someone made a choice.
