The Lawfare Podcast: Inside the Law Letting Senators Sue Over Phone Data

Date: November 25, 2025
Participants: Benjamin Wittes (Host), Natalie Orpet (Lawfare Executive Editor), Michael Feinberg (Lawfare Senior Editor)
Main Theme:
A deep dive into the recently passed—and already highly controversial—law that gives U.S. senators the ability to sue the government (and collect substantial monetary damages) for accessing their phone and communications records, even in the course of lawful DOJ investigations. The discussion unpacks why the law was passed, its retroactive application, sweeping definitions, potential for abuse, political context, and implications for future investigations.

Episode Overview

This episode unpacks a little-noticed piece of legislation attached to the recent government shutdown deal, granting U.S. senators the unprecedented ability to recover up to $500,000 per "instance" if the government lawfully collects their communications metadata—clearly aimed at DOJ subpoenas related to the January 6th investigation. Wittes, Orpet, and Feinberg scrutinize the bill's text, legislative history, political motives, and its dramatic implications for the separation of powers, investigative practice, and Congressional self-dealing.

Key Discussion Points & Insights

1. Background & Purpose of the Legislation

• Catalyst: The law emerged after DOJ subpoenas for the communications records of several senators in connection with the January 6th investigation (03:40).
• Provisions: Allows senators to sue the United States for each instance their records are accessed by the government, even retroactively for lawful investigative actions since 2022 (03:40).
  • "This legislation...creates a cause of action for senators to get as a remedy up to $500,000 per instance when their data is accessed by the government, including in connection with lawful investigations." — Natalie Orpet (03:40)

2. Separation of Powers and Its Limits

• Senators' Rationale: Framed as protecting legislative independence—a “penumbral” extension of Speech and Debate Clause values (07:40).
• Skepticism: The panel questions the purity of these motives, suggesting this is more about protecting senators' reputations in the wake of the January 6th probe.
  • "What’s really happening here is that a bunch of senators who played untoward roles in January 6th want to whitewash their own histories by making it seem outrageous that… their records might have been touched." — Benjamin Wittes (09:00)

3. Retroactivity & Legislative Process

• Retroactive Reach: The law is retroactive to 2022 to specifically cover the records seized during the DOJ’s January 6th investigation (05:59, 12:50).
  • "It is highly unusual to backdate legislation like this…what it is doing is saying that things that were perfectly legal between 2022 and the enactment of this legislation are now, poof, illegal and can be recovered $500,000 per instance." — Natalie Orpet (12:50)
• Lack of Debate: The legislation was “slipped in” as part of the shutdown deal, without meaningful debate or consultation with DOJ or investigative agencies (13:57, 15:47).
  • "It’s pretty weird that you would have a good faith effort to do something like this that did not include reach out to investigative agencies." — Michael Feinberg (15:47)

4. Discontent Within Congress

• House vs. Senate: Only senators (not House members) can sue, creating friction and charges of self-dealing (19:41–22:03).
  • "If we think of this as a civil liberties violation, recovery for me, but not for thee, is not the right way to think about it." — Benjamin Wittes (19:41)
• Political Calculus: Many in the House opposed the bill, seeing it as politically toxic self-dealing (21:08).
  • "It really looks like they're supporting millions of dollars of self-dealing for some of the most powerful people in the country." — Michael Feinberg (21:08)
• Repeal Efforts: The House has already voted to repeal; the fate in the Senate is unclear, as some senators still back it vociferously (18:45–19:13, 47:19).

5. Definitions of “Instance” and Multiplier Effects

• Broad Interpretation: Each device (cell, office phone), staff member, account type, or non-disclosure order counts as a separate $500,000 instance (27:30–33:39).
  • "If you have a cell phone and an office phone and you are a senator, that is two separate instances, that is $1 million...It is also for every single search conducted." — Natalie Orpet (27:30)
• Gratuity: Realistically, this could mean millions per senator, compounded across staff and repeated searches (33:39).

6. Impact on Future Investigations

• Chilling Effect: Law enforcement may be unable to use basic investigative tools—like geofence warrants in response to mass casualty/assassination events, cyber breaches, or counterintelligence investigations—without risking astronomical civil liability (39:30–43:59).
  • "In terms of day to day, rather vanilla investigations, if this bill passes, this technique no longer functionally exists." — Michael Feinberg (39:30)

7. The “Target” Exception and Its Limits

• Narrow Exception: Only if a senator is formally designated a “target” (high evidentiary bar) is there a defense for the government. Exception is “affirmative” and requires formal pre-existing designation, not retroactive after collection (44:37).
  • "[Senator is a target] if the prosecutor or a grand jury has…substantial evidence linking the person to a crime…and investigators have formally designated as a target in official records.” — Natalie Orpet (44:37)
• Practical Problems: Public lawsuits may tip off investigations, undermining prosecutorial secrecy (44:37).

8. What Counts as “Senate Data”

• Dubious Breadth: Even personal or campaign-related activities routed through Senate systems are covered, opening the door for compensation for conduct unrelated to legitimate legislative business (36:53).

9. Damages and Litigation

• Minimum Payouts: The law sets $500,000 as a minimum, not a ceiling, per violation—even if no concrete harm is proven (50:56).
  • "It's really $500,000 for having been investigated." — Benjamin Wittes (51:07)
• Jury/Bench Questions: The cause of action is broad; a fact-finder (jury or judge) may have little basis to deny, given the definitions (50:09).
  • "Given the breadth of the definitions…it’s difficult to imagine that a jury wouldn’t find…that the facts meet the law." — Natalie Orpet (50:47)

10. Philosophical Takeaway

• Blunt Critique: The hosts close by noting the perverse incentive: “Committing a crime turns out to be profitable, right?" — Michael Feinberg (51:14)
• Wittes’s dry summary: “Don’t let it ever say that crime does not pay, folks… Just make sure you’re a senator first.” (51:17)

Notable Quotes & Memorable Moments

• On Retroactivity and Motivation:
  • “If you were really concerned about the policy issue and the separation of powers issue, you wouldn’t do this retroactively. You do it because you’re trying to say something about history.” — Benjamin Wittes (12:31)
• On Legislative Process:
  • “This looks very much like a rushed bill fueled by a sense of grievance rather than… a coherent, well thought out legal argument.” — Michael Feinberg (31:03)
• On Scope and Self-Dealing:
  • “The affront to good order in government when a bunch of senators vote to create a cause of action to give themselves money.” — Benjamin Wittes (38:24)
• On Future Impact:
  • “You’re talking about, under this bill, potentially billions of dollars in civil damages…Just in terms of day-to-day, rather vanilla investigations, if this bill passes, this technique no longer functionally exists.” — Michael Feinberg (39:30, 41:07)
• Satirical Closing:
  • “Crime pays. Get investigated by the FBI. Just make sure you are a senator first.” — Benjamin Wittes (51:17)

Important Timestamps

• 03:40 – What the legislation does, its origins, and targeting January 6th investigation
• 05:59 – Details on the government subpoenaing senators’ phone records
• 12:50 – Discussion of the bill’s retroactivity and legal oddity
• 19:41–22:03 – Bill applies only to senators, sparking House opposition
• 27:30 – Explanation of the $500,000 "per instance" multiplier
• 31:03 – Critique: “a rushed bill fueled by a sense of grievance”
• 36:53 – Definition of “Senate data,” including personal/campaign activity
• 39:30–43:59 – Practical effects: geofence warrants, cyber, and CI investigations
• 44:37 – The narrow “target” exception, practical implications
• 50:56–51:14 – Confirmation of $500,000 as a minimum damages floor
• 51:17 – Wittes’s closing satire: “crime does pay—if you’re a senator”

Tone & Style

The episode is sober, critical, and analytical, with Wittes’s trademark wry humor. The panel uses plain language to dismantle the legal and practical flaws in the legislation, at times expressing outright skepticism of the motives behind it. Moments of sharp cynicism—especially regarding Congressional self-dealing—are balanced by legal precision and context.

Summary

This episode unflinchingly dissects the "phone data" law for senators—a legislative maneuver with major implications for civil liberties, governmental oversight, and investigative capability. The Lawfare team lays out the facts, critiques the process and the law’s broad, retroactive sweep, and underscores the law’s self-serving character, all while highlighting the harm it may do to valid law enforcement. The episode serves as a cautionary tale about what happens when lawmakers craft policy in the shadows with an eye more on their own interests than on long-term constitutional principle or public good.