Jim Jordan referral leaves Jack Smith hard to charge
The Jim Jordan referral of Jack Smith to the Justice Department faces steep legal hurdles because former prosecutors say House Republicans have not shown he committed a crime. Experts argue Smith answered sworn questions about toll records truthfully, and a “literal truth” defense undercuts a false-statement case.
Key Takeaways
- House Judiciary Chairman Jim Jordan referred former special counsel Jack Smith to the Justice Department for possible prosecution over alleged false statements in closed-door testimony.
- Republicans say Smith’s team obtained text-message content from 44 lawmakers via a National Archives request while Smith discussed only toll records in his deposition.
- Ex-prosecutors told CBS News the referral mismatches what lawmakers asked and what they now claim they wanted to know.
- Smith’s lawyers call the theory spurious and say answers about toll records were truthful; the Justice Department says it is reviewing the referral.
What did the Jim Jordan referral claim about Jack Smith?
Rep. Jim Jordan of Ohio formally referred Smith late Wednesday, alleging he “seemingly made willfully and intentionally false statements of material fact” when testifying that he did not seek a search warrant to access lawmakers’ text messages. The referral centers on December 2025 closed-door testimony about subpoenas for toll records of some Republican lawmakers during the probe of Trump’s efforts to overturn the 2020 election loss.
Toll records list originating and dialed numbers plus date, time, and length of a call. They do not include call or text content. When asked whether toll records he requested included phone-call or text content, Smith answered no, according to PBS News reporting on the exchange.
Jordan argued those answers were misleading because Sen. Chuck Grassley released records showing Smith’s team obtained the contents of 44 lawmakers’ text messages through a separate National Archives subpoena for communications of Trump advisers and aides. Jordan pointed to 18 U.S.C. § 1001 and said false statements can include half-truths that omit information needed to keep answers accurate.
Why would prosecutors struggle to prove a crime?
Former federal prosecutors told CBS News the Justice Department would face an uphill battle because the referral fails to show Smith committed a crime. They say Smith was asked about toll records or a search warrant targeting lawmakers’ texts—not whether texts arrived through other means—and answered those questions truthfully.
“This is just a case of a mismatch between what they claim they wanted to know, and what they actually asked,” said former prosecutor Kyle Freeny. Gregory Rosen called the referral “legally untenable,” citing the “literal truth” principle: a witness is not liable for a false statement if answers track the question asked, even if the questioner meant something broader.
Smith’s lawyers, Lanny Breuer and Peter Koski, blasted the referral as a “spurious claim” based on what Smith did not volunteer. They warned that theory risks ensnaring every congressional witness who does not disclose information outside the questions asked. Rep. Jamie Raskin said Republicans never asked Smith about presidential records across his closed-door and public appearances and faulted them for wishing they had asked different questions.
Breuer and Koski also noted Trump’s legal team learned during discovery that some texts between members of Congress and White House staff were obtained—and filed no motion claiming the collection was unlawful. One of those former Trump lawyers is Todd Blanche, whose permanent attorney general nomination is pending.
What happens next at the Justice Department?
A congressional criminal referral does not compel prosecutors to act. Still, the Trump Justice Department has opened probes after some Jordan referrals, including one into former CIA Director John Brennan over alleged false sworn testimony. It also pursued charges against former FBI Director James Comey tied to congressional testimony; that indictment was later dismissed over the prosecutor’s appointment, with an appeals review set for September.
A Justice Department spokesperson told CBS News the Smith referral has been received and is being reviewed. PBS reported a department statement saying it “will investigate all evidence of criminal conduct.” For related coverage on BlasterPost’s politics-and-markets desk, see our Fintech & Crypto Alerts hub. President Trump has publicly urged Smith’s prosecution; whether this referral becomes an indictment remains legally contested.