What to know about the controversial ‘Arctic Frost’ provision tucked into the funding bill that’s dividing GOP lawmakers

By Morgan Rimmer, Ted Barrett, Ellis Kim, CNN

(CNN) — The bill that ended the government shutdown included a provision requiring the Justice Department and FBI to notify the Senate when a lawmaker is under investigation and if their personal information is being subpoenaed.

Lawmakers can also sue the DOJ under the provision, and can be awarded $500,000 or more in damages for each violation by the government if their cases are successful.

The language, tucked into one of the appropriations bills, comes after Senate Republicans released FBI records related to an investigation called “Arctic Frost,” which pertained to the fake elector scheme from 2020 where Donald Trump allies pressured GOP electors to register Electoral College votes for Trump from states that former President Joe Biden won.

The provision sparked bipartisan furor on Capitol Hill as critics called it a self-serving measure that would enrich senators at taxpayers’ expense.

Republicans ultimately voted for the funding bill to bring an end to the historic 43-day shutdown. Now, they say they’ll introduce a standalone bill to repeal it.

Here’s what to know about the controversy on Capitol Hill:

What’s in this provision?

Senate Republicans accuse former special counsel Jack Smith and FBI leaders of having political motives for obtaining phone records of nine GOP lawmakers with grand jury subpoenas.

The records contain data from four days surrounding the January 6, 2021, attack on the US Capitol. The records do not include the content of calls. Smith has said the subpoenas were part of routine investigations.

The language that Trump signed into law as part of the stopgap funding bill explicitly lays out the various situations and parameters by which federal investigators are required to notify Congress, including when personal electronic records of senators are subpoenaed, when a senator is a target in a criminal investigation, and when data from a Senate office is needed.

It also says that any senator who is not notified about their data being used in an investigation or that they are the target of an investigation may file a lawsuit saying that investigators did not comply with federal law.

“Any Senator whose Senate data, or the Senate data of whose Senate office, has been acquired, subpoenaed, searched, accessed, or disclosed in violation of this section may bring a civil action against the United States if the violation was committed by an officer, employee, or agent of the United States or of any Federal department or agency,” the legislation says.

The law applies retroactively to 2022.

What are House Republicans saying about it?

House Speaker Mike Johnson said Wednesday that he had been blindsided by the measure added to the bill by Senate Republicans and that the House GOP would draft a separate bill to strike the language, which would come to the floor at a future date.

The issue first drew attention at a House Rules Committee meeting, when the panel was weighing the funding bill.

House Appropriations Chairman Tom Cole said he was “surprised” to see the provision. Meanwhile, the top Democrat on the committee, Connecticut Rep. Rosa DeLauro, slammed it, saying it would provide millions of dollars to the senators investigated in a probe around the fake elector scheme from the 2020 presidential election.

GOP Reps. Austin Scott, Chip Roy and Morgan Griffith said during the meeting that they are concerned with a provision. “I’ve been asking questions on this since last night, and I’ll tell you, I don’t think that Senate leadership shared with the leadership of the House what they were doing,” Scott said at the time.

Scott later told CNN: “I think it’s poorly worded, but I’m glad that other people were paying attention and read the legislation and was able to explain to the American citizens what’s in it.”

A number of House Republicans already support stripping the language.

“That was stupid, quite honestly, to put that language in this bill,” GOP Rep. Troy Nehls said.

How are the ‘Arctic Frost’ senators reacting?

Some of the Republican senators whose phone records were seized as part of Arctic Frost say they won’t seek monetary damages, amid fierce backlash to the provision that allows them to sue.

A spokesperson for Sen. Dan Sullivan, one of the senators whose phone records were seized in Smith’s probe, told CNN on Friday “he does not plan on suing and is supportive of the House bill to repeal the provision.” The aide noted the senator first learned of it while reviewing the funding deal.

Sen. Bill Hagerty said in an X post on Thursday that he was “for accountability for Jack Smith and everyone complicit in this abuse of power,” then added, “I do not want and I am not seeking damages for myself paid for with taxpayer dollars.”

Sen. Josh Hawley also called for accountability but referred to the measure as “a bad idea.”

“I think the Senate provision is a bad idea. There needs to be accountability for the Biden DOJ’s outrageous abuse of the separation of powers, but the right way to do that is through public hearings, tough oversight, including of the complicit telecomm companies, and prosecution where warranted,” he said.

Sen. Marsha Blackburn’s office told WBIR this week she intended to sue. In a statement to CNN on Friday, her office said, “Senator Blackburn’s plan has always been to seek a declaratory judgment—not monetary damages—to prevent leftists from violating the constitutional rights of conservatives.”

Blackburn, who is running for Tennessee governor in 2026, is also facing pressure from GOP Rep. John Rose, who is making a bid as well. He decried the provision this week as a “poison pill.”

Sen. Ron Johnson told CNN in a statement he has “no plans at this time” to sue, adding, “If I did sue, it would only be for the purpose of using the courts to expose the corrupt weaponization of federal law enforcement by the Biden and Obama administrations. With the full cooperation in our congressional investigations from the Trump DOJ and FBI, that shouldn’t be necessary.”

He has previously said that he supports the provision “as a deterrent to prevent future misuse of federal agencies.”

Sen. Tommy Tuberville said in an X post on Thursday he would sue if a federal judge involved in the probe didn’t face impeachment and Smith wasn’t disbarred and jailed. He wrote, “If they aren’t, I will sue the living hell out of every Biden official involved in this to make sure this NEVER happens to a conservative again.”

He did not say what kind of relief he would seek.

Not everyone is forswearing monetary compensation.

Sen. Lindsey Graham embraced the provision while speaking with reporters in South Carolina on Wednesday, telling them he is “very much for the idea that if you’ve been wronged there should be a remedy.”

Asked if he would file a lawsuit, he responded, “Oh, definitely. And if you think I’m going to settle this thing for a million dollars? No. I want to make it so painful, no one ever does this again.”

CNN reached out to his office on Friday.

CNN also reached out to the office of Sen. Cynthia Lummis, who did not immediately return a request for comment.

Where does the Senate stand?

Following a backlash from House Republicans about the inclusion in the government spending of a provision that would allow senators to sue the Department of Justice if their phone records are obtained without their knowledge, a GOP Senate source familiar defended the legislation as appropriate.

The person, granted anonymity to talk freely about the thinking behind the provision, pointed to a carveout if a senator is under criminal investigation and other rationale for the move. The source declined to comment on the political fallout and what the Senate might do with legislation House Republicans plan to move to undo the policy.

They detailed:

• There was a strong appetite among Senate Republicans to respond to the Arctic Frost investigation and the Biden DOJ’s lawfare when Jack Smith’s team targeted Republican senators without notification in violation of existing law.
• Senate Majority Leader John Thune included this provision in the leg approps bill at the request of members of his conference.
• It only applies to senators because it is amending existing statute (2 U.S.C. 6628) which only applies to senators.
• Under this provision, senators would have to be notified when their data is requested by the Department of Justice.
• There is a carveout if this material is requested because the senator is a target of a criminal investigation.
• This is not a political issue, it is about separation of powers.
• This provision has teeth and allows senators to sue if they do not receive notification.
• This prevents future administrations of either party from weaponizing the DOJ against political foes in the Senate.

What happens next?

Eyes are on the House, which is expected to bring a bill that would nullify the provision.

If that bill passes the House, it remains to be seen if and when Senate GOP Leader John Thune would bring it to the floor for a vote.

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CNN’s Manu Raju, Evan Perez and Casey Gannon contributed to this report.