Brent Skorup
Just before Thanksgiving, the House Judiciary Committee revealed that investigators in the Department of Justice had obtained more than two years of Rep. Jim Jordan’s (R‑OH) phone records. The subpoena, issued in April 2022, demanded “all call detail records” from Rep. Jordan’s phone company from January 2020 to the present.
This disclosure is alarming for several reasons. For one, Rep. Jordan appears to have been singled out for an unusually sweeping investigation into his private communications. As a 2013 Washington Post interview shows, Jordan has long been one of the fiercest critics of government secrecy and domestic spying. Typically, subpoenas for call records cover a period of days or weeks, perhaps a few months at most. I’ve never seen one spanning more than two years.
Whether this represents retaliation for his oversight work or simply an overbroad fishing expedition—or both—a two-year request for sensitive call records raises serious questions about the DOJ’s investigative approach.
The subpoena also reflects a troubling encroachment by the executive branch into the legislative branch. In response, at least four Senate subcommittees plan to investigate the broader “Arctic Frost” operation—a Biden DOJ probe that swept up hundreds of people and organizations, most of them tied to Trump or the GOP. The investigation focused on determining whether prominent Republicans and conservative groups were behind the 2020 “false electors scheme.”
While the investigation of Rep. Jordan’s records stands out, Sen. Chuck Grassley (R‑IA) also released more than 1,700 pages of documents from the Arctic Frost investigation, offering a remarkable snapshot of the sweeping reach of federal subpoenas in a single probe.
These subpoenas for lawmakers’ and organizations’ financial and phone records have a standard form, but “standard” should not be interpreted as “benign.” They are extremely invasive. The DOJ subpoena to Verizon for Rep. Jordan’s records demanded it turn over many types of records, including:
- User names, screen names, and email addresses
- “All call detail records,” including all phone numbers reached via call or text
- Session times and duration of calls or Internet use
- IP addresses used during Internet use
Although the subpoenas did not demand that Verizon turn over phone or browsing content, the information sought reveals far more than call logs. It allows investigators to map Rep. Jordan’s social networks and perhaps expose journalists and whistleblowers.
For the broader Arctic Frost investigation, the DOJ issued nearly 200 subpoenas to dozens of banks, Salesforce, Google, GoDaddy, Stripe, political consultants, and individuals, seeking, depending on the target:
- credit reports
- all transactions from dozens of banks
- all agreements with 40 law firms
- “all payroll records”
- “all tax returns”
- “all financial records”
- Know Your Customer reports
- “diary entries”
- all MAC addresses associated with certain email accounts
- all records of emails sent or received over a 2‑year period
- “records of [user] session times and durations” over a 2‑year period
- digital marketing KPIs for email and social media, including click-through rates, conversion rates, likes, follows, shares, and donor acquisition costs
Many of these subpoenas were accompanied by gag orders and threatened criminal prosecution for tech or bank company employees who disclosed their existence.
Executive Branch Overreach: Past and Present
While the Arctic Frost investigation appears novel in its scope and intrusiveness, it recalls earlier episodes of executive branch overreach and secrecy. About a decade ago, CIA officers improperly accessed intra-Senate emails and a computer network designated for Senate staff, even referring potential criminal charges against committee staffers after they obtained embarrassing information about the CIA’s “enhanced interrogation” program.
More recently, after information about the FBI’s surveillance of Carter Page leaked in 2017, the Bureau subpoenaed phone and email providers for records identifying which journalists congressional staffers had contacted. In 2024, the DOJ inspector general concluded:
As a result, dozens of congressional staffers became part of the subject pool in a federal criminal investigation for doing nothing more than performing constitutionally authorized oversight of the executive branch.
Setting aside the serious separation of powers concerns and political issues presented by Arctic Frost, the episode highlights a broader concern: law enforcement agencies’ routine pursuit of digital records raises profound questions about privacy and Fourth Amendment protections.
Importantly, the Trump DOJ possesses these same broad powers and appears prepared to use them. Rep. Thomas Massie, for instance, recently said an FBI official threatened one of his staff members with criminal charges because the Bureau disapproved of Massie’s investigation into the January 5 pipe bomber. Politicized investigations are a perennial temptation.
The DOJ could, for instance, issue broad subpoenas in an attempt to buttress apparently weak criminal cases against figures such as James Comey and Letitia James. Notably, in the Comey matter, the DOJ seems to have obtained records from the iCloud and email accounts of Daniel Richman, Comey’s friend and former lawyer. Richman has since sued to compel the DOJ to delete and cease using his digital records.
Legal and Industry-Led Reforms for Digital Privacy
Hopefully, these controversies prompt bipartisan concern about the scope of investigators’ subpoena power—whether the targets are in Congress or not—rather than invite further political payback.
Absent legislative reform, tech, financial, and telecommunications companies have ways to preserve their customers’ privacy and resist broad subpoenas. They could clearly stipulate in their terms of service that customers—not the providers—own their phone and computer records. That would place companies on a much stronger legal footing to refuse to comply with overly broad demands like the one seeking two years of Rep. Jordan’s records. A company could then say, “We don’t own those records; we merely hold them on behalf of our customer.” In many cases, a warrant would be required because, as the Supreme Court recognized in Ex parte Jackson (1878), even when someone conveys his personal property or records to another, he may still have a property interest in them.
Courts could also clarify that the targeted request and review of someone’s records, even if held by a third-party company, are still considered a “search” under the Fourth Amendment and require a warrant. As the Supreme Court said in Kyllo v. United States (2001), the Framers understood “search” to mean “to look over or through for the purpose of finding something; to explore; to examine by inspection.” By any plain reading, the DOJ “searched” private records, and a warrant should have been required.
The Arctic Frost investigation underscores the urgent need to reexamine and limit how investigative power is exercised in the digital age. If the executive branch can secretly collect years of communications and financial records from anyone—even lawmakers—it erodes the protections afforded by the Fourth Amendment.