Congress Grills Jack Smith Over Subpoenas, Power, and the Legal Process

Summary

Podcast Summary: The 47 Morning Update with Ben Ferguson

Episode Title: Congress Grills Jack Smith Over Subpoenas, Power, and the Legal Process
Date: January 23, 2026
Host: Ben Ferguson (Premiere Networks)

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Overview: Episode Theme and Purpose

This episode centers on the highly charged congressional hearing where Special Counsel Jack Smith testified before the House Judiciary Committee. The focus is on Smith's prosecution of Donald Trump, the controversial use of subpoenas for lawmakers’ phone records—including that of Speaker Kevin McCarthy—and the broader allegations of prosecutorial overreach, politicized investigations, and constitutional violations under the Biden administration. Host Ben Ferguson and featured Republican figures dissect the implications, question Smith's motives, and argue for stronger accountability.

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Key Discussion Points and Insights

1. Political Targeting and Motivation

• Ben Ferguson opens the episode with the claim that Jack Smith's prosecution of Donald Trump was politically motivated and orchestrated by the Biden administration to prevent Trump from returning to the White House.
  “They wanted to make sure Donald Trump would never make it back to the White House.” (01:00)

2. Handling of Cassidy Hutchinson’s Testimony (03:46–08:02)

• Representative Jim Jordan and Brandon Gill grill Smith about Cassidy Hutchinson’s January 6th committee testimony—specifically her claims about Trump’s behavior in the presidential vehicle.
  • Smith acknowledges her testimony was “secondhand, hearsay” and admits that firsthand witnesses did not confirm her account.
  • Discussion reveals internal DOJ doubts about using Hutchinson as a witness due to reliability concerns.
  • Quote:
    Brandon Gill: “That is the point. The fact that they used her in a primetime hearing and you won't rule out using her… when everybody knows she wasn't telling the truth, that says it all.” (07:19)

3. Subpoenas and Surveillance of Republican Figures (08:09–15:08)

• Representative Chip Roy confronts Smith about subpoenas and monitoring of election lawyer Cleta Mitchell and others, questioning whether legal election challenges were treated as crimes.

  • Smith defends investigative actions, noting co-conspirator status (e.g., Sidney Powell).
  • Roy alleges vast targeting of Republican and conservative groups, warning of “egregious abuse of power.”
  • Quote:
    Chip Roy: “Are there any limits to the power of a special prosecutor or special counsel?” (09:51)

• Brandon Gill presses Smith on the subpoena of Speaker Kevin McCarthy’s phone records, the timing, and the non-disclosure order justified by a “flight risk.”

  • Smith admits to taking McCarthy’s records (10:30–11:36).
  • Gill points to the implausibility of McCarthy being a flight risk:
    “You think the speaker of the House is a flight risk? You think he's going to hop on a plane and leave the country?” (12:18)
  • Smith attempts to clarify that disclosure risks do not have to pertain to the actual subscriber.

• Gill reveals additional subpoenas for the phone records of nine U.S. Senators and one additional Representative, all with non-disclosure orders (12:54–13:13).

4. Constitutional Issues: Speech or Debate Clause and Legal Analysis (13:13–15:08)

• Gill cites internal DOJ communication acknowledging “litigation risk” and the absolute bar on compelled disclosure of legislative call records due to the Speech or Debate Clause.
  • Smith claims this was not specific to his office and insists actions were consistent with DOJ policy.
  • Gill accuses Smith of knowingly using a “novel legal theory,” exploiting non-disclosure to pursue potentially unconstitutional subpoenas.
    • “You walked all over the Constitution throughout this entire process… and you know it. It's absolutely disgraceful.” (15:08)

5. Response and Public Statements

• Ben Ferguson references Speaker McCarthy’s statement ridiculing the idea he would be a flight risk, emphasizing the omnipresent security for the Speaker.
  • McCarthy wrote: “Flight risk? Another of Jack Smith's many lies.” (15:18)
• Ferguson claims AT&T lied about handing over records, contrasting the response with what he contends would happen for Democrats.
  • “I assure you. They wouldn't have given these phone records for a Democrat sitting president… But because it was Donald Trump, they said, fine, do it.” (17:58)
• Ferguson frames the episode’s controversy as a warning of conduct reminiscent of authoritarian governments and insists on ongoing accountability.

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Notable Quotes & Memorable Moments

• Ben Ferguson:

  • “They wanted to make sure Donald Trump would never make it back to the White House.” (01:00)

• Brandon Gill (on Hutchinson):

  • “You were willing to put her on the witness stand when everybody knows she wasn't telling the truth.” (07:19)

• Representative Chip Roy:

  • “Are there any limits to the power of a special prosecutor or special counsel?” (09:51)

• Brandon Gill (to Smith on McCarthy):

  • “You think the speaker of the House is a flight risk? You think he's going to hop on a plane and leave the country?” (12:18)

• Speaker Kevin McCarthy (quoted by Ferguson):

  • “Flight risk? Another of Jack Smith's many lies.” (15:18)

• Ben Ferguson (on telecom compliance):

  • “They wouldn’t have done it to Joe Biden and they certainly wouldn’t have done it to Barack Obama. But because it was Donald Trump, they said, fine, do it.” (17:58)

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Key Timestamps for Important Segments

| Timestamp | Content/Segment | |-----------|---------------------------------------------------------------------------------| | 00:35 | Introduction to the hearing and overview of accusations against Jack Smith | | 03:46 | Jim Jordan and Brandon Gill question Jack Smith about Cassidy Hutchinson's testimony | | 08:09 | Representative Chip Roy interrogates Smith on subpoenas and election law | | 10:23 | Brandon Gill and Ben Ferguson interrogate Smith about Speaker McCarthy’s records | | 12:54 | Further subpoenas for Senators’ phone records addressed | | 13:13 | Discussion on the Speech or Debate Clause and legal scrutiny | | 15:18 | Speaker McCarthy’s public response and accusations against AT&T | | 17:58 | Closing arguments about selective prosecution and the need for accountability |

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Tone and Language

The episode’s tone is direct, pointed, and combative—reflecting the urgency and outrage of the Republican perspective. Ben Ferguson maintains a no-nonsense, accusatory stance throughout, using language that emphasizes abuse, overreach, and the need for transparency and consequences.

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Conclusion

This episode provides an in-depth, partisan breakdown of accusations against Jack Smith related to his investigation of Donald Trump and, specifically, the surveillance of Republican lawmakers. Key figures—Jordan, Roy, and Gill—highlight potential abuses of power, constitutional violations, and partisan motives, with notable criticisms of Smith’s rationale and the compliance of telecom companies. The host and guests call for further investigation and accountability while denouncing what they characterize as unprecedented legal overreach targeting political opposition.

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Transcript

[Ben Ferguson]

This is an iHeart podcast, Guaranteed Human.

[Brandon Gill]

In another great victory for the ultimate goal of peace, in June, we obliterated Iran's nuclear enrichment capacity with operation. We call it Operation Midnight Hammer. And it was, it was midnight. It was dark, no moon. And every single one of those bombs from the B2 bombers hit the air shafts and went deep into the earth and totally obliterated everything that they were doing. They were two months away from having a nuclear weapon. Can't let that happen.

[Ben Ferguson]

Your lit listening to the 47 Morning Update with Ben Ferguson.

[Narrator/Host]

Good Friday morning. Nice to have you with us on the 47 Morning Update. And we are going in depth this morning with Jack Smith being forced to testify before Congress, being exposed for what a political hack he is and how he abused his power to try to take out Donald Trump at all costs at the direction of the Biden administration. They did it for one simple reason. They wanted to make sure Donald Trump would never make it back to the White house. It's the 47 Morning Update and it starts right now. During the first public testimony before the House Judiciary Committee, Republicans, especially the committee chair, Representative Jim Jordan, repeatedly accused Jack Smith of trying to get former President Trump and pursuing prosecutions for political reasons rather than legal ones. In questioning from some GOP members like Representative Ben Klein, Smith refused to confirm whether Trump could be prosecuted, again prompting accusations that is legal reasoning is unclear and even inconsistent. And then there were the controversial subpoenas from lawmakers phone records which shocked many around the country. One of the major flashpoints is that Smith's Arctic Frost investigation led to secret subpoenas for Republican lawmaker phone records, including that of Representative Chip Roy, a Republican from Texas who erupted during the hearing questioning whether his records were unfairly targeted. GOP members called this an abuse of power and obviously constitutional overreach at its highest level. Former President Trump also launching attacks on Smith while Smith testified Trump branded him as a deranged animal, accusing him of perjury and called for actions against Smith claims widely denounced by, of course, the left and the media, as you know, politically motivated attacks without evidence. Isn't it funny they'll say that about Trump but not about the actual evidence that Smith was clearly doing that exact thing to Republicans in Congress for no reason, even getting the phone records of the speaker of the House. Republicans painting Smith's motives and his decisions, including seeking gag orders and aggressive investigative tactics, as more evidence of prosecutorial overreach and and partisanship rather than impartial law enforcement. Which brings me to the first piece of Audio that I want you to hear. This is Jim Jordan questioning Jack Smith publicly for the world to see. And I want you to listen him hammer down on the facts of the abuse of power by Jack Smith and the Department of Justice when he was a special prosecutor going after Trump for one simple reason, to stop him from ever getting back in the White House.

[Brandon Gill]

Gentlemen, yields back. Mr. Smith, is Cassidy Hutchinson a liar? She was their star witness. January 6th committee. Their star witness in one of those staged and choreographed hearings they paid the former president of ABC News to put together. She was back, the only witness at this special prime time hearing. Tuesday, June 28, 2022, 8:00, clock in the evening. And she told some stories. I mean, these were, these were some stories she talked about. Present. Lunged across the back seat, grabbed the steering wheel, tried to drive the car to the Capitol. And I just want to know, you think she was lying, Chairman Jordan?

[Jack Smith]

My assessment of that particular issue is that with respect to the testimony about someone lunge or the President lunging towards the driver, my recollection of her testimony about that is that it was secondhand. She had said she'd heard that from somebody.

[Brandon Gill]

You familiar with the name Tony Ornado?

[Jack Smith]

I'm sorry?

[Brandon Gill]

You familiar with the name Tony Ornado?

[Jack Smith]

Yes.

[Brandon Gill]

White House Deputy Chief of Operations. Deputy chief of staff for operations. Right. You, you know, remember what he said about it?

[Jack Smith]

As I sit here right now, I do not.

[Brandon Gill]

Yeah, he said it didn't happen. How about Bobby Engel? You familiar with that name?

[Jack Smith]

Yes, I am.

[Brandon Gill]

Secret Service agent who was actually in the car that day. You know what he said? He said it didn't happen. And they both said the first time they ever heard this story was when Ms. Hutchinson testified in the police primetime hearing as their star witness of the January 6th committee. By the way, do you ever confirm her testimony about this particular incident?

[Jack Smith]

We conducted, as I said before, our own independent investigation of all aspects of the case that we thought was relevant. We attorneys from my office.

[Brandon Gill]

Did you ever confirm it? That's a simple question.

[Jack Smith]

We interviewed her, I should say attorneys in my office.

[Brandon Gill]

Did you ever confirm the President leaping across the seat, grabbing the steering wheel, this whole concoction she brought up in the January 6th hearing. Do you ever confirm that?

[Jack Smith]

We interviewed a. Another firsthand witness who was in the car who did not confirm that that happened.

[Brandon Gill]

But also your deposition to the committee last month, Mr. Smith, you said this. My recollection with Ms. Hutchinson was a number of the things that she gave evidence on were secondhand, hearsay. You Remember making that statement to us last month in the deposition?

[Jack Smith]

I did. And I was referring particularly to what we're talking about now.

[Brandon Gill]

Yeah. And you also said Ms. Hutchinson, regarding this particular claim was a second or even third hand witness. We ask you, if you were a defense attorney, how would you handle cross examining her if she was on the witness stand? And you said, if I were a defense attorney, Ms. Hutchinson were a witness, the first thing I would do was seek to preclude her testimony because it was hearsay. You remember saying all that?

[Jack Smith]

Yes, that's correct, sir.

[Brandon Gill]

That's correct. Right. We going to put her on the witness stand if you ever got to trial.

[Jack Smith]

We had not made final determinations as to who we were going to call as a witness.

[Brandon Gill]

We had a large still considering her.

[Jack Smith]

We had a large choice of witnesses in this case.

[Brandon Gill]

Are you familiar with what Washington Post reporters Carol Lennig and Aaron Davis said in their book? They did his book, 300 some pages book on Chronicle and the whole investigation of the Justice Department. And here's what they said on page 310. They said Jack Smith had wondered whether some of Hutchinson's claims might be relied upon at trial. Still, at one point, Smith told the elections team he wasn't ready to give up on Hutchinson's account. Ultimately, however, Trump administration officials uniformly, fiercely disputed her accounts under oath. Prosecutors on your team told Smith they wouldn't want to use Hutchinson as a witness in court. And Smith agreed. Are Carol Lennig and Aaron Davis, who wrote this, are they lying?

[Jack Smith]

My recollection is that I certainly had not made any final determinations about who we were going to call.

[Brandon Gill]

And that's the point. That is the point. The fact that they used her in a primetime hearing and you won't rule out using her, didn't rule out using her, putting her on the witness stand when everybody knows she wasn't telling the truth, that says it all. That's the degree the left and Democrats were willing to go to get President Trump putting on the witness stand. Someone everybody knows is making it up. Everybody knows that. And you were willing to do, by the way, you know how many times Cassie Hutchinson was mentioned in their report, the January 6th report? Any idea, Mr. Smith?

[Jack Smith]

I do not.

[Brandon Gill]

185 times someone that the whole country knows wasn't telling the truth and you were still considering putting her on the witness stand because you had to get President Trump. And everybody can see that now.

[Narrator/Host]

Jim Jordan wasn't the only one going after Jack Smith. Representative Chip Roy, who I mentioned earlier, had this to Say.

[Representative Chip Roy]

Do you know who Cleta Mitchell is?

[Jack Smith]

Yes, I do.

[Representative Chip Roy]

She's an election lawyer that was involved in filing an election contest on behalf of President Trump in Georgia in December of 2020. A 64 page complaint with over 1100 pages of exhibits, witness affidavits and expert witness reports documenting thousands of votes cast in violation of Georgia law, but which were nevertheless included in the vote totals. Now, notwithstanding the disposition of the cases that was filed, is that a criminal act? Filing an election contest on behalf of a candidate for office, a client, is that a criminal act? Yes or no?

[Ben Ferguson]

No.

[Jack Smith]

In fact we.

[Representative Chip Roy]

So why did you deem it appropriate to monitor Cleta Mitchell's long distance phone records in 2023, two and a half years after the election context was filed and after the presidential electors were certified? What about Jenna Ellis? What about Sidney Powell? What about Bill Sepien? What crime did you suspect had been committed by them that would warrant monitoring their phone records two and a half years after the 2020. The 2020 election was certified.

[Jack Smith]

With respect to Sidney Powell, she is one of the co conspirators alleged in the indictment. I don't know what you mean by monitoring, sir. If you're talking.

[Representative Chip Roy]

There were some 400 plus Republican conservative groups and leaders who were targeted by your investigation. Their financial records were obtained, records of the rnc, the Trump campaign, Cleta Mitchell, the Conservative Partnership Institute, the America First Policy Institute, nrcc, nrse, pacs, conservative groups, people all across the country, citizens. Because we hear a lot about members of Congress and we should because of separation of powers and the egregious abuse of power. But what we're not talking about enough, in my opinion, are the American citizens that have been targeted. Because frankly, are there any limits to the power of a special prosecutor or special counsel?

[Narrator/Host]

Now, Chip Roy wasn't the only one that wanted his pound of flesh, especially from an abusive psychotic, as I would describe it, man who said he was really a special prosecutor that abused his power to try to overthrow the will of the people and try to put Donald Trump in jail and make sure he was never president again? Brandon Gill had this to say when he had a chance to talk directly to this man that destroyed what was supposed to be law and order in this country.

[Ben Ferguson]

Mr. Smith, in January of 2023, did you subpoena then speaker of the House Kevin McCarthy's toll records?

[Jack Smith]

Yes, sir, we did.

[Ben Ferguson]

Yes, you did. And the subpoena covered the time period between November 2020 and January 2021, is that right?

[Jack Smith]

I'm sorry sir, could you say that.

[Ben Ferguson]

Again, we're not, we're not going to delay like this. The subpoena covered the time period between November of 2020 and January 2021. How many days after Kevin McCarthy was sworn in as speaker did you subpoena his records?

[Jack Smith]

I don't recall. But those two things had nothing to.

[Ben Ferguson]

Do with 16 days after becoming the highest ranking Republican in the House of Representatives. You subpoenaed his toll records. Do you agree that that might reasonably be considered a violation of the speech or debate clause?

[Jack Smith]

I do not. And I want to be clear that.

[Ben Ferguson]

The toll you were collecting months worth of phone data on the Republican speaker of the House, the leader of the opposition, right after he got sworn in as speaker, all around the time of a major vote. That sounds like a flagrant violation of the speech or debate clause to me and I think most people agree with me. And Speaker McCarthy had no recourse, did he? Because you issued a non disclosure order ensuring that neither he normal nor any of the American people knew about these subpoenas, is that right?

[Jack Smith]

The toll record, the non contact toll record subpoenas. We did secure non disclosure orders for those subpoenas.

[Ben Ferguson]

You did. And let me ask you, Mr. Smith, at the time you, you secured those non disclosure orders, was Speaker McCarthy a flight risk?

[Jack Smith]

The non disclosure order was based on.

[Ben Ferguson]

Concerns about was Speaker McCarthy a flight risk?

[Jack Smith]

He was not.

[Ben Ferguson]

He was not. Then why did your non disclosure order refer to him as a flight risk? It says right here the court finds reasonable grounds to believe that such disclosure will result in flight from prosecution.

[Jack Smith]

Sir, when securing a non disclosure order, the risks don't have to be associated.

[Ben Ferguson]

You think that the speaker of the House is in the question?

[Representative Chip Roy]

No.

[Ben Ferguson]

This is not your time. This is my time. You think the speaker of the House is a flight risk? You think he's going to hop on a plane and leave the country?

[Jack Smith]

No, no. What I was trying to explain is with respect to a non disclosure order, the risks aren't necessarily associated with the subscriber to the phone. There's. There are the risks to investigation.

[Ben Ferguson]

I think that you were using, this is clearly in reference to, to Speaker McCarthy and you were using clearly false information to secure non disclosure order to hide from Speaker McCarthy and from the American people the fact that you were spying on his toll records. But I've got more.

[Brandon Gill]

More.

[Ben Ferguson]

So let's move on. In May of 2023, you also issued subpoenas for toll records of nine U.S. senators and an additional Representative, is that right?

[Jack Smith]

In May of 23 we did issue.

[Ben Ferguson]

You did. And there were non disclosure orders in conjunction with those subpoenas as well, right?

[Jack Smith]

That's correct. Consistent with department policy and law.

[Ben Ferguson]

So again, nobody would know what you were doing. The senators would and the Representatives would and the American people wouldn't know what you were doing, is that right?

[Jack Smith]

The toll records that we secured and the non disclosure orders were consistent with policy and consistent.

[Ben Ferguson]

And you knew whenever you were doing that that there was a risk you were violating the speech or debate clause, is that right?

[Jack Smith]

The toll record subpoenas that we secured were with the concurrence of the Public Integrity.

[Ben Ferguson]

Your own analysis says that you knew there was a risk you were violating the speech or debate clause. I have it right here. This is an email from John Keller at Public Integrity Section to your team. As you are aware, quote, as you are aware, there is some litigation risk regarding whether compelled disclosure of toll records of a member's legislative calls violates the speech or debate clause in the D.C. circuit. That's from your own analysis right there. So you did know, didn't you, sir.

[Jack Smith]

With respect to the item you just put up on the screen, the last sentence states.

[Ben Ferguson]

Oh, we're going to get to the last sentence. Okay, we're going to get to the last sentence. And you cite case law in here. Quote, the bar on compelled disclosure is absolute. Is right. Is that right or do you think that you didn't have to abide by that precedent?

[Jack Smith]

To be clear, this is not. This statement is not from my office. This is the statement.

[Ben Ferguson]

This is. This is your justification for those subpoenas and ndos that you ordered. This was part of your analysis. It's a cursory analysis. I think it's worth noting. But let's get to that last sentence then. Well, given my understanding of the low likelihood that any of the members listed below would be charged, the litigation risk should be minimal here. In other words, you're using a novel legal theory which you knew was novel, has never been tested by any court. You're not charging any of these members. Nobody's going to know about it because you, you issued ndos. Nobody's going to sue about it. So sue this. So who cares? We're going to do it anyways. I mean, you walked all over the Constitution throughout this entire process. Chairman, the gentleman's time, members of Congress, and you know it. It's absolutely disgraceful.

[Narrator/Host]

Well, let's just go back for a second to the Kevin McCarthy aspect of this. Kevin McCarthy put out a post and this is what he said after Watching Brandon Gill go after Jack Smith, quote, as speaker of the House, I had a 247 security detail, and my location was known to the government at all times. Flight risk, question mark. Another of Jack Smith's many lies. Now, Kevin McCarthy is absolutely right. When you're the speaker of the House, the government knows where you are 24 7. Not just in America. Literally anywhere you go in the world, they know where you are. You're third in line to the presidency. So the idea that Kevin McCarthy, the speaker of the House at the time, was a flight risk. And therefore Jack Smith had to do this secretly because if he knew about it somehow, he was just gonna, like, leave the country is another example of the total insanity from Jack Smith. Now, it's not insanity like he's crazy. It's the insanity that he had to justify doing something he knew he shouldn't be doing and he needed a crazy reason to do it. In almost every case, a third, by the way, the U.S. senate, their phone records were asked. They're. They're basically being surveyed, spied on from the government for which they serve. And they went to Verizon and they got those records for many members of the senate. Thank goodness, @t, when they were asked for the phone records of Senator Ted Cruz, they said no, because they understood that this was like, absolute abuse of power and they weren't going to be a part of it. But Verizon was more than happy to just hand over the records of all of these members of Congress. This is just how bad it was. Now, this is also, I want to be clear what happens in, like, communists and socialist countries. They are willing, and Jack Smith is willing to lie to your face over this. Had no problem. Kevin McCarthy, I'll give you another example. Uh, and, and, and this was even before Jack Smith testifies before the House Judiciary Committee, someone posted, quote, don't forget what he did. He forced cell phone companies to hand over the phone records of sitting members of Congress. That kind of abuse demands consequences. Accountability for Joe Biden and Jack Smith is overdue. And it begins with Jack Smith answering every single question put to him by the House. Now, AT&T, not only do they turn over Speaker McCarthy's records to Jack Smith after it told the public that it didn't. AT&T straight up lied to the public. They did give then House Speaker McCarthy's personal cell phone records. Amid the January 6 investigation, AT&T lied publicly, said they did not turn over the records. But upon review, they did comply with Smith's January 2023 subpoena. Now, why would AT&T lie about this? Because they knew exactly what they did was straight up illegal. They knew they were a part of it. And apparently they didn't like Donald Trump. So they said, we'll go along with it. I assure you. They wouldn't have given these phone records for a Democrat sitting president. They wouldn't have done to Joe Biden and they certainly wouldn't have done it to Barack Obama. But because it was Donald Trump, they said, fine, do it. We have no problem with it. And this is exactly why we need accountability. Congressional hearings with him are important. It's a masterclass in transparency. The short answer is also easy. Many Democrats say move on from it and act like it never happened. Thank goodness Republicans, they're not going to do that.

[Ben Ferguson]

Thank you for listening to the 47 Morning Update with Ben Ferguson. Please make sure you hit subscribe wherever you're listening to this podcast right now. And for more in depth news, also subscribe to the Ben Ferguson Podcast and we will see you back here on Monday morning. This is an iHeart podcast. Guaranteed Human.