On January 5, 2021, prosecutor J.P. Cooney wrote, “I’m an advocate for repealing the clause but absent that, we’re stuck with it and the way it’s been interpreted,” according to the Washington Examiner, which reported obtaining a copy of the message. The clause he meant is the Constitution’s Speech or Debate Clause, a protection for legislative speech and activity. The reported message is now part of a dispute over how Jack Smith’s team handled congressional records; it does not by itself establish what the team later did or whether the clause was violated.
What Cooney’s reported message said
The Washington Examiner reported that Cooney wrote the message on January 5, 2021, before he became Jack Smith’s principal deputy prosecutor nearly two years later. Its account quotes him saying he favored repealing the Speech or Debate Clause but that, until repeal, prosecutors were bound by the clause and the way courts had interpreted it.
The wording matters: the directly attributed statement is that Cooney was an advocate for repeal. Describing it as a plan to “tear” a constitutional right away is a characterization, not the wording quoted in the reporting. The message expresses a view; it does not alone show how Cooney or Smith’s team later approached any particular records.
Why the message resurfaced
The issue arose during a Senate Judiciary Committee oversight hearing about Smith’s investigations. Committee Chairman Chuck Grassley cited the reported message while raising concerns about the investigation’s acquisition and handling of congressional records. Those concerns concern conduct years after the message, so the message and the alleged investigative actions are separate pieces of the dispute.
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What Grassley alleged and what Smith said
In his opening remarks, Grassley alleged that Smith’s team obtained congressional toll records and message content and that officials had received warnings about Speech or Debate concerns. Those are Grassley’s assertions, not a court’s findings. His remarks also quoted Cooney’s reported position: “In fact, Smith’s deputy, J.P. Cooney, said this about the Speech or Debate clause: ‘I’m an advocate for repealing the clause.’”
When Grassley asked what directions Smith gave staff concerning the clause and attorney-client material, Smith said his team took its obligations seriously, had staff familiar with the clause, and consulted the Justice Department’s Public Integrity Section when appropriate or required. Smith also called the clause “an important part of the separation of powers.” His answer describes the safeguards he said the team used; it does not independently resolve Grassley’s allegations about specific records.
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Has a violation been established?
The cited accounts document competing statements: Grassley’s allegations, and Smith’s description of his team’s approach. They do not establish a judicial finding that Smith or his team violated the Speech or Debate Clause. The accurate conclusion is that the handling of congressional records was disputed at the hearing, while the legal question of a violation remains unresolved in these accounts.
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