The United States Senate appears poised to push back against an effort by the House of Representatives to repeal a provision hidden in the bill that reopened the government, which allows U.S. Senators to sue the federal government for potentially millions of dollars over the Justice Department’s seizure of their phone records.
“If Senators believe that they have been harmed by an act of the United States, they can seek any available remedy under the Federal Tort Claims Act on the same terms as any other person,” said Rupa Bhattacharyya, advisory committee member of Justice Connection who handled tort claims for 12 years in both the administrative claims process and in federal court litigation. “This favorable treatment available only to a handful of individuals is inequitable, unjust, and blatant self-dealing.”
The provision was added in response to steps DOJ took to investigate President Trump’s alleged attempt to subvert the results of the 2020 election, and applies retroactively to any data acquisition occurring on or after January 1, 2022. No allegation of illegal conduct has been established with regard to the evidence collection, which was authorized by a federal grand jury and referenced in both the indictment of President Trump for election interference and final report issued by Special Counsel Jack Smith.
Congress enacted the Federal Tort Claims Act in 1946 to give people injured by the negligent acts of their government a pathway to sue to recover financial compensation for the injury. One reason for the law was to eliminate the unfair practice of bestowing congressional favor to private individuals through individual bills. This new provision undercuts the intent of that law and instead gives individual senators the ability to line their pockets with taxpayer money. It also sets a terrible precedent by making the government liable for statutory damages far beyond any provable need for compensation, akin to waiving the federal government’s sovereign immunity for punitive damages.
The retroactivity in the provision also raises constitutional concerns, as it purports to hold the United States liable for actions that were not required at the time of the underlying conduct. The provision is confusingly vague, as it assigns monetary liability to the United States while imposing the notification obligation on service providers and the U.S. Sergeant at Arms. And the attempt to immunize the service providers and Sergeant at Arms from liability for violating court orders is also a potential separation of powers challenge. As Michael Feinberg and Natale Orpett explain in Lawfare, “the new law is an unreasonable answer to a reasonable question.” The American people deserve better from their lawmakers.
“If senators are truly concerned about the Justice Department’s ability to secure phone records without notifying the individual, they should thoughtfully impose adequate safeguards they believe are necessary to protect all citizens by exercising their traditional oversight and legislative powers,” Bhattacharyya said. “Even if any funds recovered were returned to the U.S. Treasury, as Senate Majority Leader Thune has proposed, the self-dealing here is unconscionable.”
