WASHINGTON — Sen. Marsha Blackburn, R-Tenn., sued former special counsel Jack Smith on Wednesday, alleging that his prosecution of the president also unconstitutionally pulled in her records as a member of Congress.

The lawsuit, filed in the U.S. District Court for the Middle District of Tennessee, moves a political fight over the sweep of Smith’s investigation into the courthouse. The complaint alleges that Smith targeted Blackburn for her politics and unconstitutionally obtained her phone records as he probed Donald Trump’s alleged attempt to overturn his loss in the 2020 election.

“Through his Arctic Frost witch hunt that targeted conservatives across America and even the President of the United States, Jack Smith perpetrated one of the worst abuses of government power in our nation’s history,” Blackburn said in a statement announcing the lawsuit. “This lawsuit is solely about holding Mr. Smith accountable and ensuring that our nation’s justice system can never again be weaponized against the American people.”

The complaint came a day after Smith appeared before the Senate Judiciary Committee to testify about his probe and faced hours of questions from Republicans who accused him of violating federal law and the Constitution.

The issue of lawmakers’ messages surfaced multiple times during the hearing. While Blackburn sits on the committee, she did not question Smith.

During the hearing, Smith said he obtained two tranches of records about lawmakers through his probes. One was a group of “toll records” — information about the numbers a phone called and length of a call. The second was records obtained from the National Archives and Records Administration, which included messages between members of Congress and the Trump administration.

As part of obtaining the toll records, Smith’s team also successfully sought nondisclosure orders from a federal judge, which prevented the phone providers from notifying the lawmakers or anyone connected with the phone numbers.

The suit partially turns on the Speech or Debate Clause of the Constitution, which provides members of Congress with immunity from civil and criminal suits for actions connected to acts taken as part of their office. Blackburn’s suit argues that extends to the toll records Smith’s team obtained.

Blackburn’s lawsuit alleges that Smith’s team took steps to avoid allowing her to assert her rights as a lawmaker, including by hiding from the presiding judge that they sought lawmaker records at all.

“By seeking the toll records without alerting the cell phone provider or the NDO-issuing court to the identity of the individual whose toll records were targeted, Defendant Smith deprived Senator Blackburn of her right to assert her privileges under the Speech or Debate Clause,” the suit says.

Smith obtained Blackburn’s records from Verizon, the complaint says. When Smith’s team sent a subpoena to AT&T, the company raised the Speech or Debate Clause issue, the complaint says. Rather than fight for the subpoena, Smith’s team dropped the issue, the complaint says, which kept the judge from finding out the subpoenas included lawmaker records.

Additionally, the suit argues that the nondisclosure order in the case violated a separate federal law that says communications companies cannot be prohibited from notifying lawmakers when their records have been obtained.

Days after Trump announced in 2022 his campaign for a second term, Smith was appointed as special counsel to take over two existing grand jury probes into Trump’s behavior. Both resulted in federal charges.

The first, which is the subject of Blackburn’s lawsuit, covered allegations around Trump’s push to overturn his loss in the 2020 election. That included his alleged efforts to have states stop counting votes, present false electors to Congress and spur the Jan. 6, 2021, attack on the Capitol.

Smith dismissed the case after Trump won reelection due to a Justice Department policy that sitting presidents cannot face federal prosecution.

During Tuesday’s hearing, Smith said he complied with the law and with the Speech or Debate Clause.

Smith also said the nondisclosure orders were needed to protect the case from Trump. He said that Trump had demonstrated a history of interfering with investigations, including by threatening witnesses like retired Gen. Mark Milley, who Trump said should face the death penalty.

In recent years multiple courts have ruled that the Speech or Debate Clause privilege does not extend as far as lawmakers might wish, though the Supreme Court has not ruled affirmatively on the issue.

Last month the U.S. Court of Appeals for the 3rd Circuit held that Rep. LaMonica McIver, D-N.J., could not assert the immunity to dismiss charges stemming from a confrontation with Homeland Security Department agents during an oversight inspection of an immigration detention center in New Jersey.

In 2023, as part of the Smith probe, the U.S. Court of Appeals for the District of Columbia Circuit allowed a limited search of the phone of Rep. Scott Perry, R-Pa. There a majority of the court held that some of Perry’s communications about the 2020 election fell outside of the privilege.

In 2022, multiple courts, including the Supreme Court, ruled that the late Sen. Lindsey Graham, R-S.C., had to respond to a subpoena seeking his testimony about his actions around certifying the 2020 election.

Blackburn’s lawsuit alleges that Smith was unconstitutionally appointed as special counsel, violated her free speech rights for targeting her, and violated the Speech or Debate Clause of the Constitution and the Fourth Amendment with the search. The complaint asks for an injunction stating that Smith was unconstitutionally appointed as well as the return or destruction of the records that were taken.

The lawsuit is separate from a provision the Senate added to a spending bill last year which would allow senators to obtain $500,000 each from the government in response to their phone or other records being searched.

The provision, which legal experts called unusual, was later removed in a spending bill that passed in February.

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