Evidence disclosed last week confirms what many have long suspected: Special Counsel Jack Smith and the Biden Justice Department assembled a massive database of political opponents.
Senate Judiciary Chairman Chuck Grassley has disclosed that Smith’s operation collected personal data on at least 639,000 Republican donors, voters, and supporters. The records included names, addresses, email addresses, occupations, employers, donation histories, and even the last four digits of credit-card numbers. Some entries tracked purchases of ordinary red MAGA hats. Grassley has called this indefensible—an effort that went far beyond any legitimate investigation into the 2020 election or January 6 and instead mapped the Republican political apparatus itself.
This is not the first time Smith has treated the Constitution as optional. The August 2022 FBI raid on Mar-a-Lago raised serious Fourth Amendment concerns. Agents searched private rooms, including those used by Melania and Barron Trump. Internal FBI assessments later indicated that Washington Field Office agents did not believe probable cause existed for a full search of the residence; the Justice Department pushed ahead anyway.
However, Smith, who was appointed special counsel three months later, did not care. Instead, he used the raid to his advantage. As I documented in my book Kangaroo Court (Post Hill Press, October 2024), Smith’s pattern of aggressive, constitutionally dubious tactics against political adversaries was already evident.
The newly disclosed database compounds the problem. Where the Mar-a-Lago raid implicated the right to be secure against unreasonable searches, the compilation of hundreds of thousands of names of ordinary Americans who bought hats or made small donations strikes at the First Amendment rights of free speech and free association.
The Supreme Court has long held that government compilation or compelled disclosure of membership and association lists for the purpose of intimidating citizens is unconstitutional. In NAACP v. Alabama (1958), the Court unanimously ruled that Alabama could not force the NAACP to surrender its membership rolls. Justice Harlan explained that “immunity from state scrutiny of membership lists” is inseparable from the right of individuals “to associate freely with others” in the pursuit of lawful interests and ideas.
Forced disclosure would expose members to reprisals and thereby chill the exercise of First Amendment associational rights protected by the Fourteenth Amendment’s Due Process Clause. The state had shown no “controlling justification” that outweighed that deterrent effect.
Other cases followed. In Bates v. City of Little Rock (1960), the Court struck down municipal ordinances that required local NAACP branches to disclose membership lists under the guise of occupational tax enforcement. Justice Stewart wrote that freedom of association “for the purpose of advancing ideas and airing grievances” is protected from state invasion, and that the cities demonstrated no relevant correlation between their tax power and the need for the names.
That same year, Shelton v. Tucker invalidated an Arkansas law requiring public-school teachers to list every organization to which they had belonged or contributed over the preceding five years. The Court again recognized that compelled disclosure of associational ties impairs the right of free association because the information can be used to penalize political or ideological affiliation.
