Sen. Josh Hawley said the FBI ‘tapped my phone.’ That’s not what happened.

U.S. Sen. Josh Hawley, R-Mo., said the Biden administration’s FBI tapped several Republican senators’ phones while investigating 2020 election interference.

"Yesterday we learned that the FBI tapped my phone … tapped Lindsey Graham’s phone, tapped Marsha Blackburn’s phone, tapped five other phones of United States senators," Hawley said Oct. 7 during a Senate Judiciary Committee oversight hearing of the Justice Department with Attorney General Pam Bondi. 

Hawley repeated the statement the same day on Fox News’ "Jesse Watters Primetime" show. 

Wiretapping refers to the real-time recording or surveillance of telephone or other electronic communication and is governed by a series of federal laws.

Hawley referred to a one-page FBI document from September 2023 about the investigation into 2020 election interference. U.S. Sen. Chuck Grassley, R-Iowa, Senate Judiciary Committee chairman, made the document public the day before the hearing.

Grassley’s Oct. 6 press release did not use the word "wiretap." It said the FBI targeted Republican lawmakers’ cell phones for "tolling data." They were Hawley, Graham of South Carolina, Blackburn and Bill Hagerty of Tennessee, Dan Sullivan of Alaska, Tommy Tuberville of Alabama, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming, and Rep. Mike Kelly of Pennsylvania. Grassley’s press release cited nine lawmakers, while Hawley referred to himself and seven other senators.

In 2023, the FBI sought and obtained data about the lawmakers’ phone use from Jan. 4 to 7, 2021, Grassley’s release said. "That data shows when and to whom a call is made, as well as the duration and general location data of the call. The data does not include the content of the call." 

Those dates are around the time of the Jan. 6, 2021, assault on the U.S. Capitol.

Grassley called the FBI effort "disturbing and outrageous political conduct."

Some — but not all — of the lawmakers had objected to at least one state’s election results showing that Joe Biden won the 2020 election. And some of the lawmakers had a connection to some Republicans’ effort to submit fake elector certificates saying that Donald Trump won in states where Biden won. 

Legal experts said Hawley misused the term "tapping" to describe the data searches.

"I don’t think as a technical legal matter the sweep of metadata constitutes wiretapping, since that is when the government intercepts the content of conversations via electronic surveillance," said Stan Brand, a longtime attorney with experience in congressional matters.

The process "was not a wiretap," said Cheryl Bader, a Fordham University clinical associate law professor. "What was sought was basically a record of phone numbers dialed from a specific phone number."

When PolitiFact asked Hawley’s office for evidence that these tactics involved wiretapping, his staff pointed us to two Oct. 7 social media posts in which he repeated his statement but didn’t provide additional evidence.

The investigation, dubbed Arctic Frost, launched in 2022 to look into what the FBI said was a "conspiracy to overturn the results of the 2020 Presidential Election so that former President Trump could remain in office." Special Counsel Jack Smith led the probe. 

In 2023, a grand jury indicted Trump for attempting to subvert the 2020 presidential election. The case was dropped after Trump won the 2024 election.

Grassley is leading a committee investigation into the government’s actions during Arctic Frost.

‘Tolling data’ is not the same as wiretapping

Wiretaps are generally disallowed under the law, but exceptions exist for law enforcement purposes approved by a judge.

Bader characterized the process for securing a wiretap as "arduous."

"A wiretap requires permission of the court based on probable cause," she said.

The permission process typically requires law enforcement to provide a basis for suspecting an offense warranting the use of a wiretap for further investigation; affirmation that alternate means have been exhausted; and a proposed period for the wiretap to be active.

The tolling data that Grassley described — such as who called who and for how long — "is a standard investigative tool and does not involve listening to the substance of conversations," said Joan Meyer, of counsel to the law firm Benesch Friedlander Coplan & Aronoff LLP.  "Federal prosecutors use this all the time."

The process for securing call logs or metadata requires a subpoena but is less arduous than for wiretaps, Bader said. She said the requirement for obtaining data is relevancy of the information, not probable cause, as a wiretap requires.

"The law does not afford the same privacy protection to a list of numbers dialed from or coming into a phone account that it affords to the words uttered in a private telephone conversation," she said.

Brand — who represented Rep. Scott Perry, R-Pa., after his phone was seized by the Justice Department as part of the Jan. 6 investigation — said Hawley could make a reasonable argument that the FBI’s actions were improper, based on the Speech and Debate clause of the Constitution, which says members of the House and Senate "shall not be questioned" for "any Speech or Debate in either House."

Our ruling

Hawley said, "The FBI tapped my phone" and those of other senators.

Hawley misused the term "tapping."

Grassley said what was obtained was data — such as who was called and when — not the calls’ content. 

Legal experts said wiretapping would involve real-time surveillance or recording of electronic conversations, not just call logs or metadata.

We rate the statement Mostly False.