The F.B.I. has collected countless phone records and videos connected to the January 6 Capitol insurrection. The organization determined quickly after the riots that via emergency orders, they would not require court approval to monitor communications from those who who committed violence or attended the riots. The F.B.I. is also monitoring the data from lawmakers who were on Capitol Hill during the insurrection.

The F.B.I. has collected cell phone data from the cell tower which connected to a given phone. The tower can tell investigators where a phone, and presumable phone user were at a given moment and allows them to trace calls from that phone. A retired senior F.B.I. member explained the organization is “searching cell towers and phones pinging off cell sites in the area to determine visitors to the Capitol,” according to an interview with The Intercept.

Acting U.S. Attorney of D.C. Michael Sherwin said in a press conference January that the Department of Justice’s legal team investigating the insurrection included senior public corruption officials. “[This] indicates a focus on public officials, i.e. Capitol Police and members of Congress,” the former F.B.I. member told The Intercept.

Lawmakers have pushed back against the DOJ’s investigations, saying the Senate itself should investigate the lead, not the Justice Department. Sen. Sheldon Whitehouse (D-Rhode Island) said in a statement in January that, “Because Congress has protections from the Department of Justice under separation of powers, specifically the Speech and Debate Clause, significant investigation will need to be done in the Senate.”

The F.B.I. and DOJ’s processing of lawmakers’ phone records is a potential grey area in the separation of power Whitehouse describes. Because of the F.B.I.’s emergency orders, concerns like Whitehouse’s will likely be sidestepped.

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