Senator John Thune is throwing cold water on House Republicans’ demand that a private cause of action for senators to sue the Justice Department be repealed. A small band of GOP senators could end up making millions of dollars off of the provision that was slipped into a government funding deal last week. 

Congress adopted the private cause of action for senators after it was disclosed that at least eight members of the upper chamber had their phone records obtained by the FBI during the “Arctic Frost” probe following the January 6, 2021 riot at the Capitol — an investigation which later became the basis for Special Counsel Jack Smith’s prosecution of President Trump. 

Those senators who had their records obtained without their knowledge will be awarded $500,000 per incident of records being obtained if they succeed in suing the government. 

The private cause of action was approved by Congress as part of a bill to re-open the federal government, though Speaker Mike Johnson said before the vote that he wanted that provision repealed as soon as possible. The right to sue the DOJ applies only to senators — not House members. 

“I was surprised by the addition of that provision in the bill and I’m certainly not happy about it,” Mr. Johnson told the Sun last week. At a press conference after the funding bill was passed, Mr. Johnson went so far as to say he was “angry” that the section was put in the legislation at the last minute. 

The House is expected to pass a bill repealing the private cause of action on Wednesday night. 

Mr. Thune, however, hinted that no relief would come for his Republican colleagues in the House. At a press conference following a private lunch for Republican senators on Wednesday, Mr. Thune defended the private cause of action, and claimed that his GOP colleagues were entitled to relief after their phone records were obtained during the Biden administration. 

“Obviously we’ll see what the House does, but I will tell you that that was designed — that was a Senate-specific solution,” Mr. Thune said Wednesday. He said that the right to sue was offered to senators because by obtaining lawmakers’ phone records, the Biden administration engaged in an egregious “violation of [the] separation of powers under the Constitution.”

“Obviously Jack Smith violated the law in the way he went about that,” Mr. Thune said of the former special counsel. “This is something that needed to be addressed, and we’ll see what the House does.”

Instead of relitigating the private cause of action issue, Mr. Thune says his Republican colleagues are more “interested in addressing the weaponization of the federal government, in this case the Biden Justice Department, against Article I members of our government.”

Mr. Thune brushed off the idea that there was any kind of rift between Senate and House Republicans as a result of the affair. He describes it as “slight differences of opinion” in how to address the matter. 

It isn’t just Mr. Johnson who is personally angry at the cause of action provision — his rank-and-file members, from some of his most conservative to some of his most moderate all despise the measure. 

Republican Congressman John Rose, who has authored the repeal bill of the private cause of action, called senators’ attempts to make money off of lawsuits against the Justice Department “blatantly unconstitutional.”

“The House does not have to wait for the Senate to act and watch idly while this payday stands,” Mr. Rose said in an impassioned floor speech on Wednesday afternoon. 

Congressman Kevin Kiley, another Republican, spoke out against the “self-enrichment scheme” during his own speech on the House floor. 

“This ‘Who Wants To Be a Millionaire?’ provision created by U.S. senators for themselves and themselves alone is outrageous, and I will of course be voting to repeal it today,” Mr. Kiley said. 

At least one lawmaker in the upper chamber, Senator Lindsey Graham, says he plans to sue the DOJ. Mr. Graham says no one should expect him to settle for a measly million dollars. 

Mr. Graham told reporters in South Carolina last week that he knows that both his personal phone records and his government phone records were subpoenaed by Mr. Smith.

“I’m gonna push back really hard,” Mr. Graham said. “If you think I’m gonna settle this thing for a million dollars — no. I want to make it so painful no one ever does this again.”