House Judiciary Committee Chairman Jim Jordan issued a criminal referral of former special counsel Jack Smith to the Department of Justice on Wednesday, alleging that Smith made false statements during congressional testimony last December about his team’s access to lawmakers’ communications.
In a letter to Acting Attorney General Todd Blanche, Jordan wrote that Smith “knowingly made false statements” when he testified on December 17, 2025, that his team had not sought a search warrant for text messages from members of Congress. Jordan based the referral on newly released documents showing that Smith’s investigators obtained text messages from 44 lawmakers as part of their Trump investigation.
Smith’s legal team immediately disputed the allegation, arguing in a letter to Jordan and Blanche that Smith answered the questions posed to him truthfully. The former special counsel was specifically asked whether he had sought toll records—which show only the time, date, length, and phone numbers of calls—from members of Congress. Smith correctly answered that he had not sought the content of text messages through those toll record subpoenas.
Smith’s lawyers noted that his team obtained the text messages through a separate, distinct subpoena to the National Archives and Records Administration for White House records, not through the toll records he was questioned about. “The toll record subpoenas that were the focus of those questions did not call for the content of text messages,” wrote Smith’s attorneys Peter Koski and Lanny Breuer.
Former federal prosecutors and legal experts told CBS News that the referral faces steep obstacles. Kyle Freeny, a former prosecutor now with the Washington Litigation Group, called it “an embarrassment” and “a case of a mismatch between what they claim they wanted to know, and what they actually asked.” Former prosecutor Gregory Rosen said the referral is “legally untenable, if not ridiculous,” noting that the legal principle of “literal truth” protects witnesses who answer questions truthfully, even if they don’t volunteer information beyond what was asked.
The referral invokes 18 USC 1001, which makes it a federal crime to knowingly make false statements to the government. However, legal experts argued that Congress bears the responsibility for asking precise questions. “The burden is on the lawyer taking the deposition to ask the right question—not on the witness to guess what wasn’t asked and volunteer it,” Rosen said. “If Congress wanted different answers, they should have asked different questions.”
Criminal referrals from Congress carry no legal force. The Justice Department is not required to investigate or prosecute based on such referrals, though the Trump administration has previously pursued some cases recommended by Republicans, including investigations into former CIA Director John Brennan. A DOJ spokesperson confirmed receipt of the Smith referral and said the department “will investigate all evidence of criminal conduct.”
Smith’s legal team called the referral an effort to “weaponize the justice system by attacking a career, nonpartisan public servant who faithfully and fearlessly performed his duties by following the facts and the law.” They noted that Trump’s legal team, which received the text messages during discovery in Smith’s prosecutions, never filed a motion challenging the propriety of how they were obtained.
Rep. Jamie Raskin, the ranking Democrat on the Judiciary Committee, said Republicans “embarrassed themselves” with the referral. He noted that committee Republicans never asked Smith about presidential records or whether his team had reviewed text messages from lawmakers through other means. “Jack Smith could not have lied because Republican Members never even asked the question their theory is based on,” Raskin said.
Sources
- ABC News — Jordan’s referral letter, Smith’s December 2025 testimony details, and legal responses from Smith’s counsel
- PBS NewsHour — Jordan’s allegations, Smith’s testimony exchange on toll records, and expert legal analysis
- NBC News — Jordan’s formal referral, Smith’s December testimony, and Smith’s legal team’s response
- CBS News — Expert prosecutor commentary on “literal truth” defense and the referral’s legal merits
