Jordan accuses Smith of lying to Congress in criminal referral to DOJ

House Judiciary Chair Jim Jordan (R-Ohio) late Wednesday recommended criminal charges against former special counsel Jack Smith, pushing to tee up a prosecution of the man that led the criminal cases against President Trump.

A copy of the referral obtained by The Hill accused Smith of making false statements to Congress when he was deposed late last year about his investigation and prosecution of Trump.

The letter from Jordan accuses Smith of lying to the committee when asked if he ever subpoenaed the text messages of members of Congress. While Smith ultimately reviewed lawmaker texts, they were obtained through the White House.

“This information calls into question the completeness and accuracy of statements that Mr. Smith made under oath to the Committee regarding his team’s access to the content of Members’ text messages,” Jordan wrote to the Justice Department, accusing Smith of providing a “half truth” by failing to mention how the texts were received.

Attorneys for Smith disputed that, saying the special counsel’s answers were “unimpeachably truthful” and said Jordan was positing an “unprecedented theory that Mr. Smith provided false testimony not because of what he said, but because of what he did not say.”

Rep. Jamie Raskin (D-Md.), the top Democrat on the panel, swiftly accused Jordan of distorting the facts, saying Smith did not subpoena members’ text messages but rather compelled the National Archives to turn over the communications of White House staff. It was those White House phone records –– required to be preserved under law –– that revealed text conversations with 44 members of Congress.

“With today’s referral of Jack Smith to DOJ, Chairman Jordan and the Republican Congress have embarrassed themselves again in this investigation. Jack Smith was clear and consistent in his testimony, and he told the truth. When asked if his subpoena for Members’ toll records sought the content of either Member’s phone calls or messages, he truthfully replied that they did not. That statement was true when he said it, and it is true today,” Raskin wrote.

“It seems Republican Members of Congress are lashing out because they just realized their communications with the White House became presidential records preserved at the National Archives as required by the Presidential Records Act (PRA). This referral deliberately distorts and misstates the facts, including what questions the Republicans actually asked at Mr. Smith’s interview.”

Smith’s legal team noted that lawmakers “voluntarily” sent texts to an executive branch mandated to preserve all records and said Smith disclosed the existence of the text messages to Trump’s legal team who never contested them in court.

“The referral is made not because Mr. Smith made a false statement—the letter concedes he did not—but because he did not proactively disclose information that was not responsive to a question asked,” attorneys Lanny Breuer and Peter Koski wrote in a letter to Jordan and Acting Attorney General Todd Blanche. 

“Mr. Smith agreed to testify before the House Judiciary Committee fully cognizant of the risk that President Trump’s Justice Department would try to find something in his testimony to serve as the basis for a criminal charge. This risk existed not because Mr. Smith would make a false statement, but because President Trump has repeatedly ordered that Mr. Smith be prosecuted and jailed.”

While Jordan and Raskin largely agree over the facts surrounding the deposition, they diverge on whether Smith was sufficiently candid.

Central to the accusation are so-called toll records, a summary from phone companies that details calls made and received, along with their duration, as well as a timestamp of text messages transmitted, though not their content.

Smith has acknowledged obtaining the toll records of a number of lawmakers, but told the committee no, he had not subpoenaed lawmaker text messages. 

The question posed by Republican staffers was whether Smith ever subpoenaed lawmaker text messages, to which the special counsel answered no.

“While Mr. Smith testified that he did not seek a search warrant from telecommunications carriers for the content of Members’ text messages, he failed to disclose that his office received text message content from NARA relating to White House personnel phone records,” Jordan wrote, accusing Smith of having “excluded information that was highly relevant to the Committee’s examination.”

Further review of that portion of Smith’s deposition shows Jordan’s staff were largely focused on the toll records and whether the Speech and Debate clause insulates Congress from having even their call records obtained.

When the conversation picks up after a break, Smith returns to one of the central tenants of his testimony: that he believed he could prove beyond a reasonable doubt that Trump had committed a number of crimes in seeking to thwart the transfer of power.

Raskin described the GOP as being bitter they did not do a better job asking questions, nothing that Smith is “not telepathic.”

“Wishing that you had asked different questions while you had the opportunity to examine a witness is not a proper basis for a referral of a witness for criminal prosecution. Congressional Republicans never asked Jack Smith about presidential records,” Raskin wrote in his statement.

“They did not even ask whether Mr. Smith’s team had ever reviewed text messages from Members. Jack Smith could not have lied because Republican Members never even asked the question their theory is based on.”

The referral was transmitted to Blanche, who previously represented Trump in his criminal matters, including those before Smith.

Under Trump, DOJ has pursued numerous prosecutions against foes of the president, including New York Attorney General Letitia James (D), who also brought a case against Trump.

The Justice Department did not respond to request for comment.

Fox News first reported the criminal referral.

Raskin argued the referral, if acted upon by DOJ, would not advance far in court, but he noted the timing aligns with the Senate’s consideration of Blanche’s nomination to lead the department.

“This referral, if ever brought before a judge, will get laughed out of court. But success on the merits is not the goal. It is meant to harass Jack Smith. It is meant to please their Fox News viewership. It is meant to whitewash their own participation in a scheme to overthrow our elections,” he wrote.

“Above all, it is meant to create a distraction so Republicans on Senate Judiciary can feel just a little more comfortable confirming the architect of the Epstein cover-up and lawless Trump slush fund and super pardon, Todd Blanche.”

Updated 11:22 p.m. EDT

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