For more than eight hours in December, former Special Counsel Jack Smith testified in a closed-door deposition about his criminal investigations into Donald Trump, and House Republicans pored over the transcript for any statement that could get him prosecuted.
In his criminal referral letter, House Judiciary Committee Chair Jim Jordan (R-Ohio) all but admitted that Smith told the truth, but he urged the Justice Department to prosecute him anyway.
Three words from Jordan’s criminal referral tipped his hand.
‘Gave the impression’
The smoking-gun phrase appears in the middle of a sentence of a 6-page letter accusing Smith of giving misleading testimony about his prosecution team’s access to the text messages of Republican Congress members.
“The responses provided by Mr. Smith gave the impression that neither Mr. Smith nor his team had access to the content of members’ privileged text messages,” Jordan wrote, implicitly admitting the supposed evidence of a crime is the Committee’s subjective impression rather than any false statement.
From Smith’s marathon testimony, Jordan flags only two short snippets, adding up to roughly 20 seconds.
Here’s the first exchange.
Q. Did you seek a search warrant for the content of any text messages from Members?
A. From Members?
Q. Yes.
A. No, I don’t recall that.
Q. Okay. It was just toll records?
A. Correct.
There is no evidence that Smith sought a search warrant seeking text messages from Congress members.
Smith’s assistant Thomas Windom sought communications from senior White House officials from the National Archives and Records Administration, and those records included their text messages with Congress members.
Arguing that this was misleading, Jordan objects: “The Committee sought to understand, in particular, whether Mr. Smith, or members of his team, ever received or reviewed the content of Members’ communications.” That may have been the case, but those were not the questions Smith was asked.
The second snippet follows the same pattern:
Q. Did the toll records that you requested from the Senators, did they include the content of the phone calls?
A. No.
Q. Did the records that you requested, the toll records from the Member of Congress, include the content of text messages?
A. No.
In these questions, Smith was asked about his team subpoenaing toll records showing Trump and Rudy Giuliani’s efforts to push members of Congress to reject the certification of Joe Biden’s election immediately after the Jan. 6th insurrection. Those records included only metadata, not the content of the calls or text messages.
‘Unimpeachably truthful’
The former special counsel’s lawyers Lanny Breuer and Peter Koski immediately picked up on the concession.
“Notably, the referral letter does not contest the truthfulness of Mr.Smith’s answers,” they wrote in a three-page response. “Perhaps in recognition of this deficiency, the referral letter instead relies on the unprecedented theory that Mr. Smith provided false testimony not because of what he said, but because of what he did not say.”
They note that this legal rationale isn’t merely wrong.
“This dangerous theory of criminal liability has no limiting principle and risks ensnaring every witness who testifies before a congressional committee who does not proactively disclose information that is not responsive to a question asked (i.e., every witness),” they wrote.
Smith’s lawyers said their client was “fully cognizant” that testifying was a legal risk.
“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,” they wrote in their letter, which was addressed to Jordan and Acting Attorney General Todd Blanche. “That is not the rule of law. And it contravenes the principles that are critical to the vitality of our democracy. An honest assessment of the facts and the law compels a rejection of this meritless referral.”
Ultimately, the Trump Justice Department indicted James Comey based on a similarly strained reading of the ex-FBI director’s congressional testimony. That case collapsed before the merits could be adjudicated.
But Rep. Jamie Raskin (D-Md.), the House Judiciary Committee’s top Democrat, said that a successful prosecution isn’t the point.
“It is meant to harass Jack Smith,” Raskin said. “It is meant to please their Fox News viewership. It is meant to whitewash their own participation in a scheme to overthrow our elections. And above all, it is meant to create a distraction so Republicans on Senate Judiciary can feel a little more comfortable confirming the architect of the Epstein cover-up and lawless Trump slush fund and super pardon, Todd Blanche, to the post of Attorney General. We will not fall for this ludicrous distraction. Neither will the American people.”
Watch my dissection of the problems with — and the concessions within — the criminal referral in the video at the top of this newsletter.
