Senator Lindsey Graham, R-S.C., speaks to reporters upon his arrival at the U.S. Capitol on February 20, 2025 in Washington, DC Graham is one of eight senators who could sue the government over an FBI subpoena of his cell phone call logs, under a bill aimed at reopening the government. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON – The U.S. House of Representatives passed legislation Wednesday that would repeal part of a law passed by Congress just last week that for the first time allows senators to potentially sue the federal government for millions of dollars if their data is subpoenaed without their knowledge.
By a vote of 426-0, the bill was sent to the Senate, where Majority Leader John Thune (R-S.D.) appears reluctant to put the measure up for a vote, although he hasn’t ruled it out entirely.
“You have an independent, co-equal branch of government whose members have had their phone records illegally obtained, spied on, if you will, by an armed Biden Justice Department,” Thune said. “I think that requires a certain amount of responsibility.”
Thune said he understands why several Republican senators were frustrated because they didn’t know the provision was added to the funding package that ended the government shutdown.
“I think this is a justified criticism of the process,” said Thune. “But I think, essentially, I think there has to be some kind of responsibility and consequences for this kind of weaponization against a co-equal branch of government.”
Thune would not say whether he believes it is appropriate for senators to sue for millions of dollars in taxpayer money because their phone records were pulled as part of the investigation into President Donald Trump’s efforts to overturn the 2020 presidential election.
“I don’t think there’s anyone for whom the money is important,” Thune said. “I think it’s more about the principle.”
Republican Sen. Lindsey Graham of South Carolina, one of eight senators who could benefit, said shortly after the House debate concluded that he planned to sue Verizon as well as the Justice Department under the fresh provision.
“The subpoena that was issued was, in my opinion, completely flawed. The court order saying that if you told me anything (about the subpoena) I would tamper with witnesses or evidence is legally offensive,” Graham said. “I’m not going to put up with this crap anymore. I’m going to court and we’ll see what happens.”
Dispute among Republicans
Senate Republicans’ decision to include the lawsuit provision the emergency spending law The end of the 43-day government shutdown marked a occasional public break between Republican congressional leaders.
Speaker Mike Johnson, R-La., said last week, shortly after the House passed the funding bill, that he was “very upset” that the lawsuit language had been added to the package without his knowledge or consent.
“I think that was completely wrong. I don’t think that was wise. I don’t think that was right,” Johnson said at the time. “And the House will reverse it. We will repeal that. And I expect our colleagues in the Senate to do the same.”
The provision, which will remain in effect unless the Senate passes the fresh bill and Trump signs it, allows senators whose cell phone or other data was subpoenaed without their knowledge to sue the federal government for $500,000 “for each instance of violation.”
The language is retroactive to January 1, 2022 and permitted the eight senators whose cell phone call logs were subpoenaed to sue for millions of dollars as part of the FBI’s 2023 investigation into efforts to overturn the 2020 election.
Between January 4 and January 7, 2021, the FBI reportedly obtained cell phone usage data from Graham and Sens. Marsha Blackburn and Bill Hagerty of Tennessee, Josh Hawley of Missouri, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming, Dan Sullivan of Alaska and Tommy Tuberville of Alabama, as well as Pennsylvania Rep. Mike Kelly. All are Republicans.
The law allows judges to delay notification for 60 days if the information was obtained as part of a criminal investigation and if disclosure to the senator would endanger the safety or life of someone, cause lawmakers to avoid prosecution, cause someone to tamper with or destroy evidence, result in intimidation of witnesses, jeopardize the investigation or unreasonably delay the trial.
A judge could always extend this 60-day notice period in criminal investigations if one or more of these elements persist.
Both parties disagree
Debate in the House of Representatives about the two-page bill sponsored by Georgia GOP Rep. Austin Scott, it was broadly bipartisan, although Democrats and Republicans expressed frustration with the lawsuit language for different reasons.
Administration Committee Chairman Bryan Steil, R-Wis., said the “troubling provision” in the spending bill must be eliminated.
“These provisions are not the right way to address the real concerns about the separation of powers,” Steil said. “Remember, Congress serves the American people, not the other way around.”
Steil said the FBI obtaining cell phone call records of senators as part of its investigation into efforts to overturn the 2020 election, known as Operation Arctic Frost, was an abuse of power that must be addressed. But he said allowing senators to sue for millions of dollars in taxpayer money was the wrong approach.
“I am committed to holding those involved accountable. No one benefited from the Biden administration’s mistakes,” Steil said. “But that doesn’t mean elected officials should now benefit financially from these failures.”
New York Rep. Joe Morelle, the ranking Democrat on the committee, said the cell phone logs of those eight senators were accessed because FBI agents believed the lawmakers “knew about, or even participated in, efforts to overturn the 2020 presidential election, efforts that culminated in a violent attack on that very institution.”
Morelle said anyone with a basic understanding of criminal investigations knows that phone records are “among the most commonly used tools” to gain a better understanding of events.
“They don’t reveal the contents of conversations. They just show what numbers were called, what numbers they called and when those calls were made,” Morelle said.
“If these Republican senators truly believe that their civil liberties have been violated, or if they are interested in changing the subpoena law, then they are in a better position than literally anyone else on planet Earth to hold hearings, draft legislation, and publicly debate proposed changes,” Morelle added. “But that’s not what this is about. This is about making sure the law applies to every other American but him.”
Scott said House Republicans voted for the spending bill to end the government shutdown, not because they supported the lawsuit provision, which he called “the most self-centered and self-serving language I’ve ever seen in any law.”
He also chided Senator Graham for saying in interviews that he planned to sue the federal government.
“We have a senator, one who claims this provision is good, and is currently saying he’s going to sue for tens of millions of dollars,” Scott said. “I believe my side did the right thing by voting to open the government. There are a select few who did the wrong thing by including language in the bill that would make them personally rich.”
Bombs, cows, the mail and lawsuits
Graham, who served as an Air Force judge advocate general before entering politics, compared the retrieval of his cell phone data as part of the investigation to a case he worked earlier in his career after the Air Force “dropped a bomb on a man’s barn and killed his cow. And he was able to make a claim.”
Graham also compared it to someone suing the government after being hit by a U.S. Postal Service truck when asked by a reporter what he planned to do with the millions of dollars he would likely receive if he won the case.
“If you’ve been wronged, do what you want with the money,” Graham said.
In addition to filing a lawsuit, Graham hopes to expand the language so that organizations and private individuals can file a lawsuit against the government under the Federal Tort Claims Act if they feel they have been similarly wronged.
“I will insist on a vote in the U.S. Senate to expand the ability of people to bring claims who may have been harmed,” Graham said, adding that this would likely include the Republican Attorneys General Association, the Republican National Committee and Turning Point USA.
Graham rejected other Republican lawmakers’ criticism of the lawsuit provision, saying it was not “self-dealing.”
“I understand politics, but I’m not worried about that. I’m worried about getting the right result,” Graham said. “I mean, if you don’t want me to sue the government, that’s up to you. I’m going to sue whether you like it or not. I’m not going to tolerate this anymore, and the people in my place shouldn’t have to deal with this in the future.”
