WASHINGTON – Senate Minority Leader Chuck Schumer (D-N.Y.) signed off on a potential payday for Republican senators whose phone records were obtained in a Justice Department investigation.
The potential legal windfall is part of the government funding bill President Donald Trump signed into law on Wednesday evening.
The provision caused an uproar in the Capitol, since it was added to must-pass legislation in the Senate at the last minute with no public notice whatsoever, no debate, and no explanation, with even some Republicans describing it as unethical self-dealing.
The provision was added by agreement of Senate Majority Leader John Thune (R-S.D.) and Schumer, according to Democratic aides.
“I am furious that the Senate Minority and Majority Leaders chose to airdrop this provision into this bill at the eleventh hour — with zero consultation or negotiation with the subcommittee that actually oversees this work,” Sen. Martin Heinrich (D-N.M.), the top Democrat on the subcommittee that oversees appropriations for the legislative branch of government, said in a statement to HuffPost.
The new law creates a “private cause of action” for senators whose phone records were obtained without notice by the Justice Department, with the provision backdated specifically to benefit senators whose records were obtained in 2023 during an investigation into Trump’s efforts to overthrow the 2020 election result.
The phone record payback is essentially the Senate version of Trump’s effort to make the Justice Department pay him $230 million for the trouble he went through being the subject of criminal investigations. It’s all an effort to make every investigation into Trump and his allies look like an unjustified “witch hunt” deserving of a cash apology.
Schumer has already faced massive backlash after eight Democrats voted for the government funding bill, ending a six-week government shutdown they started largely to show a will to fight the Trump administration.
A Democratic aide said Schumer fought to make sure the provision would also protect senators going forward, so it would shield Democratic senators from potential overreach by the Trump Justice Department.
It’s the retroactive aspect of the new law that galled lawmakers. One House Republican, Rep. Greg Steube (R-Fla.), was so disgusted that he actually voted against the government funding bill because of the senator payout.
“I could not in good conscience support a resolution that creates a self-indulgent legal provision for certain senators to enrich themselves by suing the Justice Department using taxpayer dollars,” Steube said on social media. “There is no reason the House should have been forced to eat this garbage to end the Schumer Shutdown.”
Shortly after the House passed the funding bill on Wednesday night, House Speaker Mike Johnson (R-La.) said he would quickly move legislation to repeal the provision. He suggested he was disappointed in Thune.
“He’s a trustworthy, honest broker, and that’s why I was so surprised when I found out about that provision,” Johnson said. “I was very angry.”
Johnson said he did not get a commitment from Thune to take up the House repeal bill, however, and it’s probably doomed. Thune’s office has not responded to requests for comment.
In a statement, a spokesperson for Schumer said he would push Thune to take up the forthcoming House repeal bill: “Schumer supports Speaker Johnson’s effort to strip that language from the bill and will push for its passage in the Senate.”
The new law provides $500,000 in damages for each violation, so the Republican senators would likely be able to sue for at least $1 million, since their records were obtained via grand jury subpoena, which is one violation, and the grand jury subpoena was hidden by court order, which would be another violation.
Rep. Jamie Raskin (D-Md.), a former constitutional law professor, has said the new law gives Republican senators more rights than regular citizens.
“Grand juries can render subpoenas for people’s call records, essentially their phone bills, to see who they’ve talked to if they are investigating serious crimes, and a judge can hand down a nondisclosure order with respect to that,” Raskin said.
Senate Republicans, Raskin said, “are not interested in changing the law for everybody else. They’re interested in changing the law for themselves and making a million-dollar payday out of it.”
At least one senator has already said he plans to sue for the money.
“And if you think I’m going to settle this thing for a million dollars, no, I want to make it so painful no one ever does this again,” Sen. Lindsey Graham (R-S.C.) said Wednesday during an event in his home state.
Other senators who could win millions in damages either have kept quiet or said they wouldn’t try to get the cash. A spokesperson for Sen. Dan Sullivan (R-Alaska), for instance, told HuffPost Sullivan didn’t even know about the new policy.
“Senator Sullivan first learned about this provision when he and his staff were reading the bill to open the government,” the spokesperson said. “The senator has no plans to sue.”
Sen. Josh Hawley (R-Mo.) called the provision a “bad idea” in a statement from his office.
“There needs to be accountability for the Biden DOJ’s outrageous abuse of the separation of powers, but the right way to do that is through public hearings, tough oversight, including of the complicit telecomm companies, and prosecution where warranted,” Hawley said.
Sen. Ron Johnson (R-Wis.) told HuffPost he wasn’t interested in suing. Marsha Blackburn (R-Tenn.) said she intended to seek a declaratory judgment, not monetary damages.
“This fight is not about the money. It is about holding the left accountable for the worst weaponization of government in our nation’s history,” Blackburn wrote in a social media post.
Sen. Bill Hagerty (R-Tenn.) said he wanted accountability for the special counsel who led the probe that swept up his communications, but no money for himself: “I do not want and I am not seeking damages for myself paid for with taxpayer dollars,” Hagerty wrote.
Spokespeople Tommy Tuberville (R-Ala.) and Cynthia Lummis (R-Wyo.) did not respond to a request for comment.
In his remarks in South Carolina, Graham offered probably the fullest explanation and defense of the new provision that any senator has given. He said Democrats agreed to the measure to protect themselves from the Trump administration.
“There was signoff by Democrats because it protects the institution,” Graham said. “And that will protect the Senate in the future, and it will also cover any Democrats in this Senate, this term, that may have something happen to them.”