Burnett’s account could prove particularly significant because he said prosecutors gave him phone numbers — but not the identities of the people connected to those numbers.
One of those numbers was reportedly associated with Rep. Jim Jordan, who at the time was the ranking Republican on the House Judiciary Committee.
“I would’ve subpoenaed the number, but I did not know who the phone number belonged to, who the actual subscriber was,” Burnett testified.
According to Burnett, he did not connect the subpoena to Jordan until after leaving government service in late 2024.
“It was not until I had been retired and this was on the news and there was conversation about Mr. Jordan’s toll records being subpoenaed and then there was a subpoena that came up on the internet,” he testified. “So I was only assuming—that had my name on it—that that was his number. But I do not know, as we sit here today, if that was his number or not.”
That distinction is now at the center of Republican scrutiny of the investigation.
Burnett was directly asked whether prosecutors had informed him that the records he was seeking belonged to the Judiciary Committee’s ranking member.
“No. I don’t have any recollection of that,” he answered.
Burnett indicated that knowing a member of Congress was involved could have caused him to seek additional guidance before proceeding.
“It would’ve been something I would’ve brought up to my supervisor, if there was a different process or something we needed to be doing if we were going to do that. But I was not aware.”
The testimony suggests that higher-level prosecutors possessed information that the agent actually serving the subpoena did not.
Former Smith-team prosecutor Timothy “Tad” Duree testified that the Justice Department’s Public Integrity Section had approved the investigative step involving Jordan’s records in April 2022 and knew whose telephone number was being targeted, according to reporting on the released transcripts.
Burnett, meanwhile, described the information supplied to agents much more simply: “Just phone numbers.”
But the questions surrounding the investigation extend beyond whose name appeared — or did not appear — alongside a telephone number.
Burnett also described the structure of Arctic Frost as unlike anything he had encountered during three decades in law enforcement.
Ordinarily, he explained, investigators would develop the case, become familiar with the evidence and determine which investigative steps were necessary.
That was not how Burnett remembered this investigation operating.
“A normal investigation would be, I would do the investigation, become familiar with everything, you know, do grand jury subpoenas, do the normal investigative process, follow the normal investigative steps. But, in this case, those steps were given to us by the prosecution team,” he testified.
Investigators then asked whether Burnett had ever encountered that kind of arrangement before.
“Not in my entire 30 years of law enforcement,” he replied.
That statement is likely to fuel further scrutiny from congressional Republicans, who have accused the Biden-era Justice Department and Smith’s office of overstepping constitutional boundaries while pursuing Trump and obtaining communications records connected to Republican lawmakers.
The House Judiciary Committee’s Republican majority says investigators obtained phone records involving more than a dozen Republican members of Congress. The committee has also raised concerns about nondisclosure orders that prevented lawmakers from immediately learning about the government’s requests. Those conclusions represent the committee majority’s findings and remain part of a politically disputed examination of the investigation.
There was another warning sign inside Burnett’s testimony.
He recalled that his inspector general supervisor had previously rejected a request from prosecutors for OIG personnel to participate in seizing Republican Rep. Scott Perry’s cellphone.
“I believe my supervisor — as far as that team, [the] prosecution team, wanted us to go and seize Representative Perry’s cell phone. And then it came down from the IG, you know, absolutely not. We were not going to do that,” Burnett testified.
Taken together, the newly released transcripts provide Congress with a closer look at how investigative decisions were made during Arctic Frost — and how much information was provided to the agents carrying those decisions out.
Smith inherited the investigation after being appointed special counsel in November 2022. His office subsequently pursued additional records as part of its election-related investigation of Trump.
The controversy has expanded as congressional investigators have uncovered records involving lawmakers beyond Jordan. Senate Judiciary Committee materials say the investigation collected telephone records involving more than a dozen members of Congress, while separate disclosures showed investigators obtained text messages involving 44 lawmakers.
For Republicans investigating the episode, Burnett’s testimony adds a new question: Why was an experienced federal agent executing investigative demands without being told that the records involved a senior member of the very congressional committee responsible for overseeing the Justice Department?
Burnett says he would have raised the issue with his superiors had he known.
Now Congress is asking who did know — and why that information apparently stopped before reaching the agent whose name appeared on the subpoena.
