Internal emails show Jack Smith’s special counsel team repeatedly let potentially privileged materials reach investigators, undercutting his recent Senate testimony that filter protocols were followed.
Newly released emails obtained under federal open records laws show that then-Special Counsel Jack Smith’s office acknowledged, on at least six occasions between December 2022 and August 2023, that suspected attorney-client privileged materials or other sensitive communications had slipped past filter-team review and reached frontline investigators, including FBI agents.
Just the News reported that The Oversight Project secured the records, which document repeated internal alerts, search requests, and purge orders after protected material landed with the investigative team. The timing matters: Smith told the Senate Judiciary Committee only weeks before the report that his office observed proper investigative protocols, including the filter team.
That assurance is now colliding with his own office’s written trail.
Sen. Katie Britt, R-Ala., put the question to Smith in plain terms during the Senate Judiciary Committee hearing.
Britt asked:
"Mr. Smith, it's your testimony to this committee that you observed the proper investigative protocols at all times, including the filter team?"
Smith answered:
"Yes, we sought to do things consistent with the law and department policy."
Department policy is not vague on this point. When prosecutors seize material likely to include privileged communications, the Justice Department manual requires a filter team of agents and lawyers not involved in the underlying investigation to pull out protected communications before investigators see them. The emails show that barrier did not hold as designed.
The Oversight Project’s haul covers December 2022 through August 2023 and includes multiple internal flags that privileged or sensitive material had already reached the wrong people.
In December 2022, a lawyer on the team wrote that counsel would be redoing a third production because “the version we received contains some potentially privileged material.”
On May 24, 2023, another lawyer emailed: “Hi, I just came across [redacted description] on Everlaw. It's a privileged doc. Can we have it removed?”
The clean-up language grew more urgent by late summer. On Aug. 3, 2023, the prosecutor’s records officer asked the FBI to hunt a specific file already in investigators’ accounts.
The records officer wrote:
"The Smith Special Counsel Office requests the FBI search its Outlook server and/or eVault for the following potentially privileged document which may have been inadvertently sent to members of the investigative team. Please search the attached list of individuals’ UNET and FBINET Outlook accounts for a document titled SM_MAL-0021793. If found, please notify us of the locations and take steps to purge the document from those locations. The SCO is working to resolve the issue with this sensitive document quickly and we appreciate your help in this matter."
Five days later, on Aug. 8, 2023, an unnamed official reacted to improperly forwarded evidence by saying he did not intend to read “Brett’s notes,” adding he would delete the email “but for FOIA purposes perhaps I shouldn't.”
Marshall Yates, former chief of the FBI’s congressional affairs office and strategic counsel for The Oversight Project, said the pattern contradicts Smith’s sworn account. Yates argued the prosecutors and investigators were reviewing non-filtered information before it went through the required screen, conduct he said the office’s own emails admit.
Yates said:
"Jack Smith's abuse of power knew no limits, and what he testified to the Senate Judiciary Committee was that they followed filter team protocols. He was very clear in that testimony. And what we found is a pattern... where prosecutors and investigators are seeing filtered information, non-filtered information that they're reviewing before it goes to a filter team. And that is a violation of the protocols that Jack Smith testified that they followed. And this is in writing, in their own words, where the prosecutors and the investigators are admitting and flagging over and over again, at least six times in the documents, six different violations that we found in just a few months that they should have never seen them, and they admit to seeing it. They admit to opening it. They have a number of times that they open it and review it, and that is just not allowed."
Those admissions sit beside a wider record of aggressive data collection in the same special counsel effort, including earlier scrutiny of how investigators tracked contacts around Trump’s campaign chief.
House Judiciary Committee Chairman Jim Jordan has already moved beyond filter-team process and into the accuracy of Smith’s testimony under oath.
In a July letter to Attorney General Todd Blanche, Jordan referred Smith to the Justice Department for possible prosecution. Jordan wrote that the committee had pressed whether Smith or his team ever received or reviewed the content of members’ communications, and that Smith testified in a deposition last December that he did not receive the content of members’ text messages.
Jordan’s letter then cited Justice Department productions to the committee:
"The DOJ produced documents to the Committee revealing that Mr. Smith’s team obtained text messages of 44 Members of Congress, implicating both Republicans and Democrats in both chambers of Congress, that may have included privileged content. This information calls into question the completeness and accuracy of statements that Mr. Smith made under oath to the Committee regarding his team’s access to the content of Members’ text messages."
Jordan’s referral argues those records undercut the completeness of Smith’s sworn statements. Sen. Marsha Blackburn, R-Tenn., has separately sued Smith personally, alleging his team’s collection of her phone records violated civil liberties and Speech or Debate Clause protections.
The same investigative machinery has drawn sustained attention for sweeping in political and legal traffic far from any narrow criminal theory, from large-scale donor data collection to monitoring that captured defense-side contacts.
Attorney-client privilege is not a technicality for lawyers. It is a constitutional backstop so citizens, witnesses, and counsel can communicate without the prosecution reading the file first.
Filter teams exist for a reason: to keep protected material away from the agents and prosecutors building the case. When the special counsel’s own emails request purges of documents already sitting in investigative Outlook accounts, the safeguard has already failed in practice, even if someone later tries to claw the file back.
Prior reporting on the same probe has described how Smith’s team used a pen register and trap-and-trace device to monitor incoming and outgoing calls to Susie Wiles, logging contacts that included Trump’s defense lawyers, a method that raised the same core problem of investigative access brushing against privileged channels. Related coverage has detailed how call logging around Wiles pulled in attorney traffic, and how prosecutors sought court authority for that monitoring without fully flagging lawyer targets.
Smith has publicly denied wrongdoing in the broader probes of President Donald Trump and has said he would pursue the former president again. The emails do not litigate every charging decision. They do show his office repeatedly documenting that potentially privileged material reached the investigative side anyway.
Lawmakers and watchdogs are also examining how the same apparatus pulled in reporter texts and donor bank records, widening the accountability fight beyond a single filter-team slip.
The Oversight Project emails, Jordan’s referral to Attorney General Blanche, and Blackburn’s lawsuit form a single pressure line: process promises made under oath versus process failures admitted in real time by the office itself.
What remains unresolved in the public record is whether every flagged document was fully purged, whether investigators retained knowledge from material they should never have seen, and how the Justice Department will treat Jordan’s criminal referral. The emails already answer a narrower question. Smith’s team did not merely debate privilege in the abstract. It wrote down, again and again, that protected or sensitive material had reached the investigative ranks and needed to be hunted down after the fact.
For a special counsel who told senators the protocols held, that is a problem written in his own office’s hand.
When the people writing the rules keep the keys to the filter, the public has every right to read the emails that show when those keys failed.
