What did he know and when did he know it? That’s a question former Biden Attorney General Merrick Garland may soon face as the size and scope of Justice Department special counsel Jack Smith’s dragnet to criminally prosecute Donald Trump comes into fuller focus.

Evidence released in the past week by Senate Judiciary Committee Chairman Chuck Grassley shows Smith’s team prepared a briefing memo in January 2023 – as the presidential race between then-President Joe Biden and Trump was heating up – which alerted Garland that prosecutors were obtaining the communications of as many as a dozen Trump private lawyers and allies and Congress. 

The memo made clear that those gatherings were being done despite legitimate claims the lawyers and members of Congress may have for attorney-client and Debate and Speech Clause privileges. 

The “AG BRIEFING” document by Smith’s office – dated Jan. 13, 2023 – provided Garland and his office with deep insights into the anti-Trump special counsel’s ongoing inquiry, and its future plans.

The documents were released this month by Grassley, an Iowa Republican, in coordination with Wisconsin GOP Sen. Ron Johnson, chairman of the Senate Permanent Subcommittee on Investigations, and Texas GOP Sen. Ted Cruz, chairman of the Senate Judiciary Subcommittee on Federal Courts.

Garland’s intimate knowledge of Smith’s inquiry comes as little surprise. 

Recent evidence also shows that Garland, then-Deputy Attorney General Lisa Monaco, and then-FBI Director Christopher Wray signed off on the launch of the so-called "Arctic Frost" inquiry into Trump related to the Jan. 6, 2021, Capitol riot. 

Garland also said he “personally approved the decision to seek a search warrant” for the FBI’s unprecedented raid of Trump's Mar-a-Lago estate in 2022. The Biden White House was also directly linked to the classified documents investigation into Trump, despite its denials, records show.

Smith did not respond to a request for comment sent to him through lawyers who have represented him. (He resigned as special counsel in January 2025.) Garland did not respond to a request for comment sent to him through the Arnold & Porter law firm, where he went to work in 2025.

Smith takes aim at “valid” congressional privilege

The newly-released Smith team briefing document from early 2023 included information about “Tolls for Members of Congress” and said that “some members of Congress communicated with Trump and his surrogates in the lead up to and during the events of January 6.”

“It is unlikely that many of those members will cooperate with our investigation, and they likely have a valid Speech or Debate privilege immunizing them from compelled testimony,” the briefing document said. 

“In the coming week or so, we intend to issue subpoenas for the toll records of certain members of Congress for the period between the 2020 election and January 20 to investigate those communications — and to establish logical evidentiary inferences regarding Trump and his surrogates’ actions and intent.”

Toll records are detailed logs of telecommunications such as phone calls and text messages. 

The revelation last year that the FBI snooped on the phone records of Republican members of Congress during its January 6 investigation has brought greater scrutiny to Smith, Wray and others.

Smith and the FBI reportedly collected the private phone records of eight Republican senators and one GOP House member as part of his investigation into the riot.

An unearthed FBI record from 2023 indicated that investigators at the bureau had “conducted preliminary toll analysis on limited toll records” tied to phone calls related to GOP Sens. Johnson; Lindsey Graham, of South Carolina; Bill Hagerty, of Tennessee; Josh Hawley, of Missouri; Dan Sullivan, of Alaska; Tommy Tuberville, of Alabama; Cynthia Lummis, of Wyoming; Marsha Blackburn, of Tennessee; and Pennsylvania GOP Rep. Mike Kelly. 

Smith team’s “Notable Meetings” included focus on piercing Trump’s executive privilege

Smith’s team said upcoming “Notable Meetings” included one with the Biden solicitor general about attempting to break through the former Trump White House’s executive privilege assertions, with the briefing memo saying the team was “committed to communication/consult with [the solicitor general] on the important precedent-setting issues we face in areas of executive privilege, Speech or Debate, and the scope and application of the relevant statutes we are considering charging.”

The newly-released briefing notes also said that potential “Litigation” included an “Omnibus Motion to Compel Executive Privilege.” Smith’s team said that, through the Biden DOJ’s Office of the Deputy Attorney General, it “will request that [Biden] White House agree not to assert – as they have done with the other witnesses.”

Smith’s team told Garland and his team that “notable meetings” also included one with Judge Beryl Howell, an appointee of President Barack Obama and the then-chief judge of the U.S. District Court for the District of Columbia. The discussion with Howell reportedly included discussing the “pace over the last month” while Smith’s team wrote that “she liked our approach of pursuing the executive privilege litigation in an omnibus fashion.”

The newly-released document also show that Smith’s team was set to meet with Judge James Boasberg, also an Obama appointee, in mid-March 2023.

The briefing for Garland and his office also discussed Smith’s team using the report written by the Democrat-led Jan. 6 congressional committee.

“Leadership team fully read and reviewed. Last weekend we went over it page by page and and [sic] incorporated into our investigative plan,” the briefing document said. “We have a methodical process for logging all information contained in the report ... .We will leverage this to avoid needless interviews and focus the interviews we perform on underdeveloped topics.”

The special counsel team also signaled in January 2023 that it might subpoena Fox News.

“We understand from witnesses that Trump spent the afternoon of January 6 in the White House dining room watching Fox– which would have placed him on notice of the violence at the Capitol,” the briefing memo said. “We also understand from publicly available information that Trump is a regular Fox News viewer. To investigate his knowledge and intent, we intend to obtain publicly broadcast Fox News coverage from January 6 and many of the days between the 2020 Election and January 6.”

The Smith team member wrote that “I will contact Fox and see if they will consent to a subpoena. If they will, I will authorize that subpoena.”

The briefing to the Biden attorney general’s office also said “FBI staffing” was “going well.”

Smith’s team wrote that there were “Face to Name Meetings with FBI HQ” coming up, with a meeting between the FBI deputy director and the FBI general counsel having happened earlier in January 2023, while a meeting with Wray as well as with Dave Sundberg, the then-assistant director in charge of the Washington Field Office, slated for later that month.

“Most importantly I also met with actual case teams – we did an all hands meeting with the entire investigative team,” the Smith team briefing document states, adding that “Overall: FBI has been very responsive.”

Smith’s anti-Trump quest was wide-ranging

The FBI raided Trump’s Florida resort home in August 2022 with the authorization of Garland. The Biden attorney general picked Smith in November 2022 to lead the twin criminal investigations into Trump related to the riot and classified documents in Trump's possession.

Garland’s appointment order for Smith in November 2022 said the special counsel was “authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” Smith was “further authorized to conduct the ongoing investigation” related to the FBI raid of Mar-a-Lago.

“The Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters,” the Biden DOJ appointment memo said. “The Special Counsel is also authorized to refer to the appropriate United States Attorney discrete prosecutions that may arise from the Special Counsel’s investigation.”

Garland as attorney general in January 2022 declared “there is no higher priority for us at the Department of Justice” than going after those involved with January 6, calling the DOJ’s inquiry “one of the largest, most complex, and most resource-intensive investigations in our history.”

Grassley wants answers on Smith’s meetings with Garland

Grassley in October 2025 had called upon Smith to provide details on all of the meetings that he and his Trump investigative team held with the Biden White House and with FBI and Justice Department leadership.

“While Special Counsel, did you or your staff ever meet, speak, or otherwise communicate with Attorney General Garland, Deputy Attorney General Monaco, Director Wray, and/or Deputy Director Abbate about your work? If yes, who, when, and what was the subject matter?” Grassley asked Smith in his letter. “While Special Counsel, did anyone at the White House, Attorney General Garland or Deputy Attorney General Monaco direct you to take any investigative or prosecutorial action? If so, who and what action(s)?”

Grassley also asked the former special counsel: “While Special Counsel, did Attorney General Garland or Deputy Attorney General Monaco approve your seeking and obtaining tolling records relating to Members of Congress? If not, who approved it?”

Trump and other Republicans have repeatedly alleged that Smith and the FBI were themselves engaging in election influence by trying to bring charges, hold trials and obtain convictions against Trump ahead of the 2024 election.

The FBI’s Arctic Frost investigation also targeted dozens of GOP officials and organizations, according to documents released by Grassley last year.

An FBI document from the Arctic Frost inquiry, dated January 2023, showed that the investigation’s “targets” included Donald J. Trump for President Inc., Turning Point USA, the Republican Attorneys General Association, the America First Policy Institute, the Save America PAC, the Conservative Partnership Institute, and many more.

Unearthed emails also show that the Biden White House Counsel’s Office coordinated with an anti-Trump FBI agent to hand over phones which had belonged to Trump and former Vice President Mike Pence.

Garland played key role in launch of Arctic Frost

Members of the Biden White House and leaders at the Biden-era Justice Department and FBI were all involved in efforts linked to the launch of the Arctic Frost investigation, which targeted then-former President Trump and MAGA World over the events related to Jan. 6, 2021.

Grassley previously released a document from early April 2022 showing that Garland, Monaco and Wray all signed off on the launch of the sweeping inquiry into Trump. The memo – initialed by all three – was for the “Approval to Open a Certain Sensitive Investigative Matter [SIM] Investigation.”

“WFO [Washington Field Office] seeks to open this SIM full investigation based on evidence that presents specific and articulable facts that individuals, both known and unknown, engaged in a conspiracy to obstruct Congress’s certification of the Electoral College on January 6, 2020 [sic],” the launch document said.

The document approved by Garland, Monaco, and Wray contained an obvious error – apparently unnoticed by them and their staffs – given that the events in question were in early 2021, not early 2020.

Smith indicted Trump in August 2023 related to the then-former president’s alleged actions related to the 2020 election, with superseding charges in August 2024. Smith contended that Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.”

Judge Tanya Chutkan dismissed the January 6-related case against Trump in November 2024 after Trump’s reelection win, pointing to the Office of Legal Counsel’s position that a sitting president could not be prosecuted by his own DOJ.

Smith released his report on his January 6-related effort against Trump in January 2025, a couple of weeks before Trump’s second inauguration.

Trump issued pardons and commutations in January last year to the hundreds of defendants who had been charged by the DOJ for their involvement in the riot.