Evidence disclosed last week confirms what many have long suspected: Special Counsel Jack Smith and the Biden Justice Department assembled a massive database of political opponents.
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Senate Judiciary Chairman Chuck Grassley has disclosed that Smith’s operation collected personal data on at least 639,000 Republican donors, voters, and supporters. The records included names, addresses, email addresses, occupations, employers, donation histories, and even the last four digits of credit-card numbers. Some entries tracked purchases of ordinary red MAGA hats. Grassley has called this indefensible—an effort that went far beyond any legitimate investigation into the 2020 election or January 6 and instead mapped the Republican political apparatus itself.
This is not the first time Smith has treated the Constitution as optional. The August 2022 FBI raid on Mar-a-Lago raised serious Fourth Amendment concerns. Agents searched private rooms, including those used by Melania and Barron Trump. Internal FBI assessments later indicated that Washington Field Office agents did not believe probable cause existed for a full search of the residence; the Justice Department pushed ahead anyway.
However, Smith, who was appointed special counsel three months later, did not care. Instead, he used the raid to his advantage. As I documented in my book Kangaroo Court (Post Hill Press, October 2024), Smith’s pattern of aggressive, constitutionally dubious tactics against political adversaries was already evident.
The newly disclosed database compounds the problem. Where the Mar-a-Lago raid implicated the right to be secure against unreasonable searches, the compilation of hundreds of thousands of names of ordinary Americans who bought hats or made small donations strikes at the First Amendment rights of free speech and free association.
The Supreme Court has long held that government compilation or compelled disclosure of membership and association lists for the purpose of intimidating citizens is unconstitutional. In NAACP v. Alabama (1958), the Court unanimously ruled that Alabama could not force the NAACP to surrender its membership rolls. Justice Harlan explained that “immunity from state scrutiny of membership lists” is inseparable from the right of individuals “to associate freely with others” in the pursuit of lawful interests and ideas.
Forced disclosure would expose members to reprisals and thereby chill the exercise of First Amendment associational rights protected by the Fourteenth Amendment’s Due Process Clause. The state had shown no “controlling justification” that outweighed that deterrent effect.
Other cases followed. In Bates v. City of Little Rock (1960), the Court struck down municipal ordinances that required local NAACP branches to disclose membership lists under the guise of occupational tax enforcement. Justice Stewart wrote that freedom of association “for the purpose of advancing ideas and airing grievances” is protected from state invasion, and that the cities demonstrated no relevant correlation between their tax power and the need for the names.
That same year, Shelton v. Tucker invalidated an Arkansas law requiring public-school teachers to list every organization to which they had belonged or contributed over the preceding five years. The Court again recognized that compelled disclosure of associational ties impairs the right of free association because the information can be used to penalize political or ideological affiliation.
These decisions establish a clear line: To avoid violating the Constitution, the government must meet an incredibly high bar when it gathers or forces disclosure of lists of people based on their political expression or affiliation. Smith’s database of MAGA-hat buyers and small-dollar donors crosses that line.
The enemies-list scandal does not stand alone. Under the Arctic Frost investigation that underpinned Smith’s election-related case, his team obtained and reviewed text messages from 44 members of Congress—40 Republicans and four Democrats—including Grassley himself, without proper filter-team review to protect privileged materials or materials protected by the Speech or Debate Clause.
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Toll records for additional lawmakers were also collected. Grassley has described the operation as a “runaway train” that bypassed ordinary safeguards and targeted members of the Legislative Branch for their official or political activities. This is not ordinary investigative work; it is surveillance of elected representatives for the apparent purpose of mapping and pressuring political opposition.
These actions implicate two federal criminal statutes aimed at officials like Smith who abuse government power to attack constitutional rights. 18 U.S.C. § 241 makes it a crime for two or more persons to conspire to injure, oppress, threaten, or intimidate any person in the free exercise of a right secured by the Constitution. The statute does not require an overt act beyond the agreement itself.
18 U.S.C. § 242 applies to anyone acting “under color of any law” who willfully deprives another of a constitutional right. Prosecutors act under color of law when they wield the investigative and charging authority of the Department of Justice.
When that authority is used not to pursue genuine criminal conduct but to intentionally deprive citizens of their rights by willfully compiling dossiers on them for buying a hat, donating a few dollars, or associating with a political movement—and when the same apparatus reaches into the communications of members of Congress—the statutory elements are met. The First Amendment rights of speech and association are among the rights protected by both provisions.
Prosecutors occupy one of the most powerful offices in government. They decide whom to investigate, whose homes to search, whose records to seize, and whom to charge. That power is tolerable only when exercised by people whose fidelity to the Constitution is beyond question.
When a prosecutor goes rogue—when he treats the Fourth Amendment as an inconvenience in a raid on a former president’s home, compiles personal cellphone information from members of Congress, and then trashes the First Amendment by building an enemies list—he criminally abuses the trust that justifies the office. At that point, the only appropriate response is prosecution of that prosecutor, as the law does not grant prosecutors permanent immunity from the statutes they enforce against everyone else.
It is past time for Attorney General Todd Blanche to open criminal investigations into Jack Smith and the other prosecutors who have abused their offices for political ends. Alvin Bragg’s novel theory in the New York case, Fani Willis’s conflict-ridden Georgia prosecution, and Letitia James’s civil fraud action against a political opponent all reflect the same pattern of weaponized justice. Kangaroo Court laid out the case for holding such prosecutors accountable; the new evidence of Smith’s 639,000-name database and the Arctic Frost surveillance only strengthens it.
The Constitution is not self-enforcing. It depends on public officials who will apply it equally and on a Department of Justice willing to prosecute those who trample it. With the enemies list now public, the choice is clear: Either the rule of law reaches the most powerful prosecutors, or it reaches no one. It is now or never.
Image created using AI.
Don Brown is a former Navy Judge Advocate who served at the Pentagon. A graduate of the University of North Carolina at Chapel Hill and the international law program at the Naval War College, he is a national bestselling author of 16 books and a commentator on national security, military justice, and foreign policy. He previously served as a Special Assistant United States Attorney, was a candidate for the United States Senate from North Carolina and has been featured as a frequent commentator on national outlets such as Fox News, Newsmax, NewsNation, Real America’s Voice, and One America News.
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