Thawing out ‘Arctic Frost’ and the new Biden-was-worse argument

A recent American presidency, you may be alarmed to hear, engaged in an action that was “arguably worse than Watergate” — an event still positioned in some circles as the gold-standard of presidential malfeasance. What might surprise you about this claim is that the presidential administration during which this horrendous act occurred was Joe Biden’s, not Donald Trump’s. What might further surprise you is that Biden had nothing to do with it.

So let us now talk about Arctic Frost, the FBI investigation into Donald Trump’s efforts to overturn the results of the 2020 presidential election that was turned over to special counsel Jack Smith once he was appointed in November 2022. It is Arctic Frost that Sen. Chuck Grassley (R-Iowa) described as Watergate-esque, making it the latest in Grassley’s fumbling effort to cast the Biden administration as the most nefarious since Richard Nixon’s.

What’s the new development?

As part of that effort, Grassley asked the FBI to sift through a set of restricted-access files to see what might turn up. FBI Director Kash Patel — also eager to portray the pre-him FBI as hopelessly biased against Trump and the right — turned over a September 2023 document indicating that the Bureau had received “limited toll records” linked to nine U.S. senators.

The document doesn’t say much more than that, except that a special agent conducted “preliminary toll analysis” on the data that had been received.

On X, Patel crowed about having “discovered and exposed the weaponization of law enforcement” as he shared a clip from Sen. Josh Hawley (R-Mo.) complaining about the revelation. On Tuesday, Hawley demanded that Attorney General Pam Bondi explain who “ordered the tapping of phones” of senators including himself.

So what’s a ‘toll record’ and how is it obtained?

Well, it isn’t phone-tapping. Such records don’t include information about the content of calls, especially in real-time.

Instead, toll records include data about calls, allowing for potential analysis of the “source or destination of a call; the times of calls; and the dates, frequency, sequence, patterns, and duration of calls to/from one or many telephones” (as a fairly old Justice Department handbook explains). It’s not clear what information about calls to or from the senators’ phones were obtained by the FBI, given the qualifier “limited” in the published document’s description.

Importantly, the authorization for obtaining the records followed the approval of a subpoena by a grand jury, according to CBS News. In other words, this wasn’t the FBI simply digging into phone records. It was the government presenting a case to grand jurors that the records would be useful in their investigation and the jurors agreeing.

Why would investigators want those records?

“The only thing we all had in common was we were all Republicans,” Sen. Bill Hagerty (R-Tenn.) fumed after the story broke. But that commonality is important.

Remember, Arctic Frost was an investigation into the effort to overturn the 2020 election, an effort that culminated in the attack at the Capitol on Jan. 6, 2021. And phone calls made to senators that day played an important role in the investigation.

Here, for example, is the federal indictment accusing Trump of (among other things) conspiracy to defraud the U.S.:

Notice that it contains multiple mentions of calls to senators on Jan. 6 that were allegedly part of Trump’s effort to block the finalization of Electoral College votes.

In Smith’s overview of his investigation, presented to the Justice Department in the waning days of the Biden administration, he offers a pithier summary:

Same deal, though: Trump and his team were calling senators to pressure them to reject valid slates of electors. And since Trump was at the White House and his team was (mostly) at the nearby Willard Hotel, this cajoling occurred over the phone.

If you want to know who called which senators to apply pressure, there’s a straightforward way to do so: obtaining records of calls to those senators’ phones.

Is there any reason to think that the senators broke the law?

In fairness, we don’t know what data was sought and obtained. But there’s no reason to think, based on this document, that the senators were themselves targets of the investigation.

That said, there is reason to think that at least some of these senators were engaged with Trump’s effort to retain power. In the days prior to the finalization of the electoral votes, multiple senators publicly announced their intentions to vote against certification of the results. Hawley went out on his own, releasing a statement indicating that he would oppose the slate of electors offered by Pennsylvania (for contrived reasons). Sen. Ted Cruz (R-Tex.) cobbled together a group of senators (and senators-elect) who announced their intention to oppose the final electoral tally, including Hagerty, Tommy Tuberville (R-Ala.), Cynthia Lummis (R-Wyo.) and Marsha Blackburn (R-Tenn.).

Sen. Lindsey Graham (R-S.C.) appeared on Fox News Tuesday night to complain about being on the Arctic Frost list and to assert that he “made phone calls to a lot of people to find out what I should do as a senator regarding certifying the election and whether or not we should have hearings.” That’s true. But this downplays what happened pretty dramatically.

Remember, there was no reason to believe that there should be hearings into voter fraud by Jan. 6, 2021 — or even by Dec. 14, 2020, the day electors met to vote. Hell, there wasn’t reason to think there was anything suspect about the results by mid-November. But Trump was stoking the idea that the outcome was dubious (for obvious, self-serving reasons), building demand within his base for Republican politicians to agree. Graham did — to the extent that a grand jury in Georgia recommended that he be indicted in that state as part of the conspiracy to throw out its election results. Prosecutors declined to do so.

Why are Republicans making such a big deal out of it?

A few reasons.

One becomes clear when you consider the timing of the new information: just before Bondi was on Capitol Hill to face questions about her handling of the Justice Department. New claims rippling through the right-wing media universe centered on alleged abuse by the Biden administration gave Republicans and Trump allies a way to dismiss the obvious and explicit intervention by Trump in federal prosecutions at the moment. It was a useful way to say “Biden was worse,” which is in fact what a lot of the Republicans questioning Bondi ended up saying.

More fundamentally, though, Republicans simply don’t think Jan. 6 and the effort to overturn the 2020 election is worth investigating. Many of them see the probe into Trump’s post-election efforts not as an attempt to enforce accountability in the wake of a subversion of American democracy but, instead, as Democrats and Democrat-sympathetic investigators attempting to block their rightful power. This is much easier to believe if you are soaked in the right-wing media conversation, where the riot at the Capitol is seen as harmless or ancillary or both. To this day, most Republicans believe there was something hinky about the results of that election, a belief that’s largely a function of the concerted, unrelenting push by Trump and his supporters to insist, despite the evidence, that there was.

In addition to excusing Trump’s behavior, this idea also plays into the sense of victimization that Trump has stoked in his base. They and he aren’t doing anything bad; it’s the bad guys who are out to get them!

But, wait: Did Biden have anything to do with this?

No. Except that Biden was president in the wake of Trump’s first presidency and his effort to overturn the results of the 2020 election, and that Biden nominated (and 20 Republican senators voted to confirm) an attorney general, Merrick Garland, who believed in adherence the rule of law and independence from the White House. Jack Smith’s appointment, you will recall, was meant to separate the probe from the Biden administration, given that Trump had just announced his bid to be the Republican nominee challenging Biden’s reelection effort.

That’s really the original sin here: Someone tried to hold Trump to account. And Donald Trump doesn’t like to be held to account, so his allies gin up elaborate explanations for why doing so was invalid. Was somehow, bafflingly, “arguably worse than Watergate.”

Photo: FBI headquarters in September 1974. (National Archives)