Fox News analyst Gregg Jarrett blasted a recent Senate provision that would let a handful of senators sue the federal government over hidden phone searches, calling it unconstitutional and unfair. Jarrett says the move looks like a self-serving carve-out tucked into a shutdown deal, and it raises serious questions about equal treatment under the law and basic due process.
On air, Jarrett picked apart the legal basis for the provision and warned it crossed clear constitutional lines. “It’s probably not legal. Article 1, Sections 9 and 10 forbid ex post facto laws. You can’t change the law and apply it retroactively without violating due process,” Jarrett told Elizabeth MacDonald.
Jarrett went further and framed the provision as privilege disguised as reform, arguing senators wrote themselves a special remedy. “This is why people despise and distrust politicians. Why should eight senators get a legal advantage that nobody else gets? It’s self-dealing. It’s self-enrichment, giving themselves an automatic half a million bucks if they successfully sue the government for being targeted by Smith. Well, what about everybody else?” Jarrett asked.
The provision was slipped into a must-pass funding deal and would offer at least $500,000 per violation for affected lawmakers while leaving ordinary Americans without any similar statutory pathway. From a Republican angle, that’s not just poor policy; it’s a glaring example of lawmakers writing laws that benefit themselves and not the broader public. People see that and they lose faith in institutions meant to protect everyone equally.
Part of the outrage stems from the secrecy that surrounded the initial surveillance efforts. Senator Ted Cruz publicly said his carrier refused to release his call information after a judge ordered confidentiality, so he and others had no idea their records were grabbed. A judge’s order blocking notification meant several senators learned only later that Special Counsel Jack Smith’s inquiry had gathered their phone data as part of an effort nicknamed “Arctic Frost.”
The targets named in reporting included Republican senators Bill Hagerty, Marsha Blackburn, Tommy Tuberville, Ron Johnson, Lindsey Graham, Josh Hawley, Cynthia Lummis and Dan Sullivan. Whether you agree with those senators politically or not, the constitutional questions raised by secret subpoenas and quietly seized records should alarm anyone who values privacy and equal protection. The issue is less about partisan scoring and more about whether anyone can be subject to surveillance without meaningful notice or remedy.
Legal experts on the right argue extracting a retroactive remedy for a tiny group while leaving everyone else behind runs headfirst into due-process concerns. If Congress can retroactively grant unique legal standing and large statutory damages to a chosen few, that sets a dangerous precedent where lawmakers tailor the law to protect themselves. Republicans pushing back say Congress should write laws that apply evenly, not carve out preferential treatment for the politically connected.
Beyond constitutional technicalities, the optics are terrible. Voters already suspect Washington insiders look out for one another first, and actions like this confirm those suspicions. For conservatives who believe in limited government and equal application of the law, the right response is simple: fix the underlying surveillance problems, make remedies universal, and stop lawmakers from inserting self-serving clauses into emergency legislation.
What comes next should be straightforward: transparent hearings, a real debate over statutory remedies for warrantless searches, and a reset on notification practices when communications are seized. Lawmakers ought to demand clear rules that protect everyone’s privacy and ensure the government is accountable, rather than crafting secret exceptions that reward the few.
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