Newly uncovered documents show that J.P. Cooney, the principal deputy prosecutor for former special counsel Jack Smith, argued in 2021 for repealing the Constitution's Speech or Debate Clause. Cooney, who has since joined the advocacy group Democracy Forward, expressed this view in an exchange with fellow prosecutor Molly Gaston, according to records first obtained by the Washington Examiner.
The Speech or Debate Clause protects members of Congress from civil or criminal prosecution arising from their legislative actions or speech. In theory, this provision shields the legislative branch from executive coercion. Cooney wrote in the 2021 message, "I’m an advocate for repealing the clause but absent that, we’re stuck with it and the way it’s been interpreted." Gaston later joined Smith's team.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, used Cooney's comments to criticize Smith during a hearing on Capitol Hill. Grassley stated that records revealed Cooney "flaunted his disdain" for the clause, which he described as a protection for the separation of powers. The senator alleged that Smith and Cooney later violated this safeguard by secretly obtaining toll records and text messages from dozens of members of Congress.
During the hearing, Grassley asked Smith if he had issued directives regarding the handling of Speech or Debate material. Smith responded that his team took its obligations under the clause seriously, noting that staff members were familiar with the provision due to prior work in the public integrity section. Smith said his team consulted with that section when appropriate or required. Grassley dismissed this defense, arguing that the staff's behavior contradicted Smith's statements.
Smith's investigation focused on efforts to overturn the 2020 presidential election. The team obtained and reviewed communications involving numerous lawmakers, including Senators Chuck Grassley, Ron Johnson, John Cornyn, Josh Hawley, Mike Lee, Cory Booker, and the late Lindsey Graham. Separate subpoenas sought telephone records associated with a smaller group of members of Congress.
Grassley previously stated that in 2023, Cooney, Gaston, and other staff members received warnings that subpoenaing congressional information could violate the Speech or Debate Clause. Cooney also complained about statutory restrictions on obtaining lawmakers' telephone records during a separate 2021 investigation, describing the language as "ridiculous" in previously released messages.
When asked about Cooney's position on the clause, Democracy Forward referred inquiries to a press release announcing the hiring of both Cooney and Gaston. In that release, they stated they had spent years holding powerful figures accountable for public corruption and civil rights abuses. They described joining Democracy Forward as a response to what they characterized as the Trump administration's de-prioritization of public corruption enforcement.
Republicans have characterized Smith's investigation as a political witch hunt, while Smith maintains he acted impartially in the best interests of the United States. Proponents of the investigation argue it was necessary to address allegations involving conduct at the core of constitutional government, including efforts to overturn the 2020 election and the retention of classified documents by President Donald Trump.