Jack Smith criminal referral faces evidentiary hurdle, ex-prosecutors say
Former prosecutors told CBS News the House GOP referral may falter because Smith answered the questions he was asked.
By Georgia Hale · Staff Writer
4 min read
The Jack Smith criminal referral sent to the Justice Department by House Judiciary Committee Chairman Jim Jordan faces a steep legal climb, according to former prosecutors who told CBS News the record cited by Republicans does not show Smith committed a crime.
Jordan, an Ohio Republican, formally asked the department late Wednesday to consider prosecuting the former special counsel. He alleged that Smith “seemingly” made intentionally false statements during a deposition when he said his team did not seek a search warrant for lawmakers’ text messages.
Smith testified that prosecutors sought only toll records for members of Congress. Those records show call data, such as phone numbers, dates, times and call duration, and do not include the content of calls or texts.
Republicans argue Smith misled the committee because his team later obtained access to some text messages involving 44 members of Congress, most of them Republicans. CBS News reported that prosecutors got those records after asking the National Archives for cellphone data tied to White House personnel in a separate documents request.
Did Jack Smith lie to Congress?
Former prosecutors told CBS News the key issue is what Smith was actually asked. They said the deposition questions focused on toll records, not on whether investigators received lawmakers’ text messages through another route.
Kyle Freeny, a former federal prosecutor now with the Washington Litigation Group, called the referral letter “an embarrassment.” She told CBS News the dispute reflects a gap between what Republicans say they wanted to learn and what their lawyers asked in the deposition.
A spokesperson for the House Judiciary Committee did not immediately respond to CBS News’ request for comment.
Jordan’s referral cites 18 U.S.C. 1001, a federal law that makes it a crime to knowingly and willfully make false, fictitious or fraudulent statements to the federal government.
A possible obstacle for any case is the legal doctrine known as “literal truth.” The rule means a witness is not criminally liable for a truthful answer to the question asked, even if the answer does not volunteer additional information.
Gregory Rosen, a former prosecutor now in private practice at Rogers Joseph O’Donnell, told CBS News the referral is “legally untenable, if not ridiculous.” He said the responsibility rests with the lawyer taking testimony to ask the right question.
What happens next with the referral?
The Justice Department is not obligated to act on criminal referrals from Congress. A department spokesperson told CBS News it has received the Smith referral and is reviewing it.
The department has previously opened inquiries after referrals from Jordan and other Republicans. CBS News reported that an investigation into former CIA Director John Brennan, tied to similar allegations about sworn congressional testimony, is ongoing and being handled by a prosecutor in Miami.
The department also brought a false-statements case against former FBI Director James Comey over congressional testimony. Comey was indicted last fall, but a federal judge dismissed the case after finding that the prosecutor who secured the indictment was unlawfully appointed. A federal appeals court is set to review that ruling in September.
Smith’s attorneys, Lanny Breuer and Peter Koski, rejected Jordan’s referral in a July 22 letter to Jordan and acting Attorney General Todd Blanche. They called it a “spurious claim” built on an “unprecedented theory” that Smith gave false testimony because of what he did not say.
Breuer and Koski also wrote that Trump’s legal team knew some messages between members of Congress and White House staff had been obtained because the information was shared during discovery. They said Trump’s lawyers could have challenged the collection in court if they believed Smith’s team acted improperly, but did not.
CBS News reported that Blanche, a former Trump lawyer who would have seen the evidence, has a nomination pending in the Senate to become attorney general on a permanent basis. The Justice Department did not immediately answer CBS News’ questions about whether Blanche will take part in reviewing the referral.
This story draws on original reporting from CBS News.