In early October, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) revealed that the FBI obtained personal cell phone data from eight Republican senators as part of an investigation into the conspiracy to overturn the results of the 2020 Presidential Election so that outgoing President Donald Trump could remain in office.

In 2023, the FBI sought and obtained data about the senators' phone use from Jan. 4 through Jan. 7, 2021. The data showed when and to whom calls were made, as well as the duration and general location of the call. The data did not include the content of the call.

Some members of the Senate were outraged by the revelation. The U.S. Senate was so incensed at the perceived invasion of privacy that it decided that American taxpayers should pay the "aggrieved" senators millions of dollars to prevent the FBI from ever investigating senators without letting them know in advance.

While literally millions of federal workers were not being paid during the 43-day government shutdown, lawmakers were scheming about how to cash in on the government impasse.

As Americans were standing in line at food pantries, Senators were sitting in the proverbial "smoke-filled room" drawing up a real money grab — even by the lowly standards of the U.S. Congress.

Senate Republicans secured a provision in the bipartisan, shutdown-ending government funding package that could award senators millions of dollars for having their phone records collected without their knowledge as part of the election investigation.

A person with direct knowledge of the legislative negotiations confirmed to Politico that Senate Majority Leader John Thune (R-SD) oversaw the inclusion of the money grab provision. It was tucked into the legislative branch spending measure for fiscal year 2026, part of a three-bill appropriations package approved by the Senate.

According to the blog Lawfare, the law created a civil cause of action — "that is, the ability to sue in court — if a senator is not notified when providers (cell phone companies) receive a subpoena for his or her data, or that of his or her staff."

The law makes it possible for eight sitting senators to cash in. The legislation conveniently provides that this new cause of action is retroactive to January 2022 — the data was obtained in 2023.

This means that those eight senators will recover a minimum of $500,000. Eight senators voted to create a retroactive cause of action so they could recover at least half a million dollars.

Lawfare suggests, the $500,000 remedy is available for each "instance," which means that a typical subpoena seeking data from a senator's cell phone and email account could cost $1 million. Collecting the same data from a Senator's staff — say, five individuals plus the senator — could cost taxpayers $6 million in damages. Lawfare further points out that the common practice of "refreshing the collected data by issuing new subpoenas as the investigation progresses could double or triple the amount of damages."

The controversy got more interesting when members of the House of Representatives finally read the legislation they passed to end the government shutdown. It was unclear if the House was outraged more by what the Senate did or by finding out the payoff did not include members of the House.

The House recently voted 427-0 to repeal the self-serving part of the new law. According to PBS, a senior White House official, who was granted anonymity to describe President Trump's thinking, said that the president had no objections to the language added by the senators and indicated privately that he does not think it was a bad provision. The source said, "The White House had been fully looped in as senators drafted the bill."

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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