A provision in the government funding bill signed by President Donald Trump on November 12 allows senators to sue the federal government for up to $500,000 per violation if their phone records were subpoenaed without prior notification. The language applies retroactively to January 2022 and appears specifically designed to benefit eight Republican senators whose records were obtained during former Special Counsel Jack Smith’s investigation into efforts to overturn the 2020 election.
The controversial provision stems from the FBI’s “Arctic Frost” investigation, which examined events surrounding the January 6, 2021, Capitol riot. In 2023, the FBI obtained “limited toll records” from eight Republican senators—Lindsey Graham (S.C.), Bill Hagerty (Tenn.), Josh Hawley (Mo.), Dan Sullivan (Alaska), Tommy Tuberville (Ala.), Ron Johnson (Wis.), Cynthia Lummis (Wyo.), and Marsha Blackburn (Tenn.)—as well as one House member, Rep. Mike Kelly (Pa.).
These records, which show call duration, timing, and general location but not conversation content, covered the period from January 4 through January 7, 2021. According to Smith’s indictment of Trump, investigators were examining alleged attempts by the former president to pressure senators as part of efforts to overturn election results.
Attorneys for Smith defended the investigation as “entirely lawful, proper and consistent with established Department of Justice policy,” noting that toll records are historical routing information collected after calls occur, not real-time wiretapping.
Senate Majority Leader John Thune (R-S.D.) reportedly added the provision to the spending package without House input. House Appropriations Chairman Tom Cole (R-Okla.) said he was unaware of the language until after the Senate had already passed the bill.
The provision notably excludes House members, meaning Rep. Kelly—whose records were also subpoenaed—would not be eligible for damages.
Under the provision’s terms, senators could receive $500,000 for each violation—potentially doubling to $1 million if both personal and campaign phone records were accessed. Sen. Lindsey Graham said Wednesday he would “definitely” sue, adding: “If you think I am going to settle this thing for a million dollars? No. I want to make it so painful no one ever does this again.”
Rep. Jamie Raskin (D-Md.) excoriated the provision as “one of the most blatantly corrupt provisions for political self-dealing and the plunder of public resources ever proposed in Congress.” He noted the provision allows “any United States Senator—not any citizen, mind you, and not even any Member of Congress, but any Senator” to collect taxpayer-funded damages.
Democrats introduced an amendment during the House Rules Committee meeting to strip the language, but it failed 4-8. Republicans expressed reluctance to support removal despite their objections, citing concerns it would send the bill back to the Senate and prolong the shutdown.
Speaker Mike Johnson pledged that the House would hold a standalone vote next week to repeal the provision.
Absent from the final package was any extension of enhanced Affordable Care Act premium tax credits, which expire December 31, 2025. Without the enhanced credits, premiums are expected to more than double for millions of Americans, and approximately 2 million to 4 million people would lose coverage altogether, according to Congressional Budget Office projections.
Senate Majority Leader Thune promised a mid-December vote on healthcare provisions, but House Speaker Johnson has not committed to bringing similar legislation to the floor.
