Emails obtained through federal open records laws raise serious questions about whether former Special Counsel Jack Smith’s investigators properly protected communications covered by attorney-client privilege during their investigations of President Donald Trump.

The records, obtained by The Oversight Project, show Smith’s team internally acknowledged at least six occasions between December 2022 and August 2023 when suspected privileged materials or other sensitive communications slipped through filter team reviews.

Those documents were sent to frontline investigators, including FBI agents who were not supposed to receive protected communications. Such access potentially breached constitutional protections for defendants and witnesses whose communications were collected through subpoenas or search warrants.

In an Aug. 3, 2023 email, the prosecutor’s records officer asked the FBI to locate a potentially privileged document that may have reached investigators. “The Smith Special Counsel Office requests the FBI search its Outlook server and/or eVault for the following potentially privileged document which may have been inadvertently sent to members of the investigative team,” the officer wrote.

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The email identified the document as SM_MAL-0021793 and requested searches of specified UNET and FBINET Outlook accounts. The office also asked the FBI to purge the document if it was found.

“If found, please notify us of the locations and take steps to purge the document from those locations,” the email stated. “The SCO is working to resolve the issue with this sensitive document quickly and we appreciate your help in this matter.”

The recurring problems created uncomfortable situations for frontline personnel dealing with material that should not have reached them. One official even weighed whether deleting an email would create concerns under the Freedom of Information Act.

“I do not intend to read Brett's notes, which I have not previously seen. I would delete the email, but for FOIA purposes perhaps I shouldn't,” the official wrote in an Aug. 8, 2023 email following recalls of improperly forwarded evidence involving attorney communications.

The records sharply conflict with Smith’s recent testimony before the Senate Judiciary Committee. During that appearance, Sen. Katie Britt, Republican of Alabama, asked whether Smith had observed proper investigative protocols at all times, including the use of a filter team.

Smith answered, “Yes, we sought to do things consistent with the law and department policy.” The newly obtained emails show repeated internal efforts to retrieve or delete sensitive material that had already reached investigators.

Under the DOJ manual, when prosecutors seize material likely to contain privileged communications, a filter team must review it before investigators gain access. That team is composed of agents and lawyers who are not involved in the underlying investigation.

Marshall Yates, a former chief of the FBI’s congressional affairs office who now serves as strategic counsel for The Oversight Project, said the records show “a violation of somebody's constitutional rights.” He also said the emails conflict with Smith’s Senate testimony.

Yates said the documents revealed a pattern in which prosecutors and investigators viewed information before it reached a filter team. He pointed to at least six incidents in only a few months where personnel acknowledged seeing or opening material they should not have received.

Smith has consistently and publicly denied wrongdoing and broadly defended his work. He told senators that he would pursue Trump again if given the opportunity, even as his team faces mounting questions, possible investigations, and litigation.

House Judiciary Committee Chairman Jim Jordan referred Smith to DOJ for criminal prosecution in July, alleging Smith “seemingly made willfully and intentionally false statements” during a committee deposition the previous December. Jordan said DOJ documents showed Smith’s team obtained text messages involving 44 members of Congress.

Sen. Marsha Blackburn, Republican of Tennessee, has also sued Smith personally, alleging his team’s collection of her phone records violated her civil liberties and protections under the Constitution’s “Speech and Debate” clause. Smith’s team also used a pen register and trace-and-trap device to monitor calls involving Trump campaign chief Susie Wiles, including calls from Trump’s lawyers.

Other emails document additional privilege concerns. On May 24, 2023, one lawyer wrote, “Hi, I just came across [redacted description] on Everlaw. It's a privileged doc. Can we have it removed?”

In December 2022, another lawyer warned that counsel would redo a third production because the version already received contained potentially privileged material. Across the records, Smith’s office repeatedly confronted the same problem his Senate testimony suggested had been handled by the rules.

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