Law Enforcement Can't Wiretap History. Phone Records Are Date/Time, Number Called, Duration

Mar 9, 2026 08:08 PM EDT, Mon

MAGA pretends to misunderstand requests of phone toll records

Law enforcement routinely obtains phone records when conducting investigations. Republicans have tried to paint that common move as scandalous.

Feb. 26, 2026, 2:28 PM EST By Jordan Rubin

Republican lawmakers have been criticizing former special counsel Jack Smith for obtaining some of their phone toll records in his 2020 election interference investigation. Yet it’s a routine step in criminal probes to secretly get such records, which don’t capture the substance of conversations like wiretaps do but rather show which numbers were in contact at certain points in time.

Regarding the nondisclosure orders his team obtained with those records, Smith explained to lawmakers that “there was a grave risk of obstruction of justice, given the obstructive conduct of President Donald Trump as is set forth, for example, in the indictment in Florida,” referring to the other case he brought against Trump, related to classified documents.

Both of Smith’s cases vanished with Trump’s 2024 election win, due to the Justice Department’s policy against prosecuting sitting presidents. But instead of leaving the dismissals as windfalls for the president and trying to move on, Republicans have been keeping the memory of Trump’s alleged criminality alive by attacking Smith and other government workers associated with the efforts against the revenge-minded president.

The latest example, MS NOW reported Wednesday night, is that the FBI “has fired at least 10 agents and support staff over allegations that they obtained phone records connected to FBI Director Kash Patel and White House Chief of Staff Susie Wiles” as part of the classified documents probe. Patel called it “outrageous and deeply alarming that the previous FBI leadership secretly subpoenaed my own phone records — along with those of now White House Chief of Staff Susie Wiles — using flimsy pretexts and burying the entire process in prohibited case files designed to evade all oversight.”

But like the complaints from GOP lawmakers, Patel risks conveying a misleading impression about these routine requests while simultaneously drawing further attention to Trump’s alleged criminality. The president pleaded not guilty in all four of his criminal cases, with only his New York hush money case having gone to trial before the 2024 election (and ending in a conviction that’s on appeal). Judge Aileen Cannon, a Trump appointee, ruled this week that Smith’s report on the documents case should stay secret.

To be sure, a person getting their phone records subpoenaed during an investigation doesn’t mean they’re guilty of any crimes or even that law enforcement thinks they are. But the FBI firings, which, perhaps not coincidentally, come amid the latest scrutiny of Patel’s directorship, also recall his own strange ties to the classified documents case, in which he testified in the grand jury after publicly claiming that Trump declassified documents before leaving the White House the first time.

So, while Patel has claimed that a “pretext” was used against him to get his records when he was a private citizen, he could be relying on a misleading rationale himself for these latest firings. Of course, it’s only the latest revenge-based move by this administration against people who did their jobs. That the move is some mix of Trumpian vengeance and self-preservation on Patel’s part seems clear, while painting a potentially ordinary investigative step as scandalous in the process.

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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.

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