Two federal prosecutors who went on to hold senior roles in Jack Smith’s special counsel investigation privately acknowledged ignoring Justice Department guidance meant to shield privileged material from investigators, according to documents obtained exclusively by The Federalist and provided by Sen. Chuck Grassley, R-Iowa.
The messages between Molly Gaston and J.P. Cooney, dated February 2021, surfaced just ahead of Smith’s scheduled Tuesday appearance before the Senate Judiciary Committee, where the outlet reported Grassley intends to press the former special counsel on his team’s handling of protected communications.
In one exchange, Cooney asked Gaston how “confusing/bad” the filter guidance was, saying he was on another call but getting messages that it was “a bit of a cluster.” Gaston replied that she had “ignored the written description of filtering the other night” because it was “not tenable.” Cooney answered, “Me too.”
The Filter Rule at the Center of the Dispute
The “filter guidance” in question refers to standard DOJ instructions for how prosecutors and agents should handle documents that may contain privileged material, such as attorney-client communications. Under normal practice, potentially privileged documents are sequestered from the investigative team and reviewed by a separate “filter” or “taint” team, which withholds or redacts protected content before prosecutors can see it.
According to Gaston’s text, the guidance instructed that if someone came across potentially privileged material, they should “stop and freeze” — a description she dismissed as unworkable. The documents indicate the FBI and D.C. prosecutors overseeing the early Arctic Frost investigation did not use a taint team at the outset, relying instead on written filter guidance.
It remains unclear from the records when or how the pre-Smith team ultimately filtered evidence. One slide included in the materials suggests the ad hoc approach lasted roughly eighteen months: it states that over 50 DOJ and FBI personnel had participated in the Filter Team since June 2022, with the first document coded on June 17, 2022.
A Sharp Contrast With Other Cases
According to The Federalist, the conduct described in the messages stands in contrast to how the same offices handled privileged material in other matters. The outlet reports that emails from whistleblowers show Cooney, Gaston, and other figures involved in investigating Trump participating in exchanges that emphasized careful taint-team procedures.
In one late-October 2021 exchange, Cooney and Tim Thibault — the agent who opened the Arctic Frost investigation — discussed the Washington Field Office’s plan for handling evidence, including providing additional agents “should a filter team be necessary.” Other emails involving Thibault stressed that investigative teams should not “discuss anything related to filter” and flagged the problems caused when an agent in another case delayed a taint review.
The outlet also cites a late-January 2022 thread in which DOJ personnel discussed “redoing” a scrub to make sure all privileged material was pulled, noting it could take “as much as 60 days” for a full scrub while an employee helped prosecutors “access the case file in ways that will keep them out of anything they shouldn’t see in the interim.” An assistant U.S. attorney forwarded that thread to Thibault, who remained on Arctic Frost until August 2022, when Grassley and Sen. Ron Johnson, R-Wis., highlighted his social media activity and he was removed from the team.
Another email thread described an AUSA discovering a text chain that potentially involved an attorney, halting review, and instructing FBI and DOJ recipients that no further analysis of the devices should occur until a filter review team determined the scope and completed its work. The message asked for filter agents from FBI and HHS “separate and apart from your squads,” called the matter “extremely time sensitive,” and requested written confirmation that recipients had stopped reviewing the devices.
Walter Giardina, described in the reporting as heavily involved in the Trump-related investigations, appeared on two other emails discussing filter protocol in separate matters, including one in which the FBI’s Washington Field Office said interview notes and records could not be shared with the investigative team until approved by a DOJ-PIN filter attorney.
Grassley’s Earlier Findings on the NARA Subpoena
The Federalist notes that Grassley previously disclosed documents in mid-July showing that in June 2023 Smith’s office subpoenaed text messages from the National Archives and Records Administration covering communications from October 2020 through January 20, 2021, from phones tied to a long list of Trump White House personnel, including Trump himself.
According to the senator’s account, NARA turned over the texts to one of Smith’s senior lawyers, Thomas Windom, on August 21, 2023, and within an hour other members of the investigative team had downloaded and begun reviewing them — apparently without waiting for the Filter Team to evaluate and segregate privileged information.
In publishing the new cache, The Federalist frames the documents as additional evidence that the Biden administration and Smith weaponized the Justice Department, and argues that Smith should be asked during his Senate testimony why he did not ensure his team adopted and applied proper filter protocols.
The records released Monday add detail to a line of questioning Republicans have pursued for months: whether the special counsel’s office took shortcuts with constitutional protections while building cases against the former president. The documents provided to Grassley and shared with The Federalist focus on process — who saw what, and when — rather than the substance of any charging decision.
Smith is set to face the Judiciary Committee on Tuesday, where the texts and the NARA timeline are expected to feature prominently. How he answers will shape a dispute that has already moved from court filings into the Senate hearing room, with each side treating the filter-team question as a test of whether the investigation followed the same rules it applies to everyone else.
Source: thefederalist.com — https://thefederalist.com/2026/09/28/exclusive-jack-smiths-team-ignored-attorney-client-and-speech-or-debate-privileges-to-get-trump/