‘Chilling’ Criminal Referral for Prosecution of Jack Smith Brings Him Closer To Facing Charges

The criminal referral of Special Counsel Jack Smith to the Department of Justice for criminal prosecution marks a new stage in President Trump’s push to prosecute the prosecutor.The chairman of the House Judiciary Committee, Congressman Jim Jordan, alleges a violation of the federal statute that criminalizes lying — while under oath — to lawmakers. In a letter to the acting attorney, Todd Blanche, Mr. Jordan writes that he has assembled “strong evidence that appears to show Jack Smith, former Special Counsel, knowingly made false statements” to Congress. “False statements before Congress are crimes that undermine the integrity of the Constitutional duty to conduct oversight and inquiries,” Mr. Jordan writes. The referral focuses on Mr. Smith’s testimony in December that his investigation into Mr. Trump’s culpability for January 6, 2021 — codenamed “Operation Arctic Frost” — relied only on metadata from telephones used by lawmakers. Earlier this month, though, Senator Charles Grassley disclosed that in addition to that metadata drawn from 14 Republican lawmakers, including eight senators, Mr. Smith had also secured subpoenas for text messages from 44 lawmakers, including four Democrats. During the deposition in December Mr. Smith was asked “Did you seek a search warrant for the content of any text messages from Members?” He answered, “I don’t recall.” When Mr. Smith was asked if he stopped short of searching texts, he responded “Correct.”Operation Arctic Frost yielded criminal charges against only one man — Mr. Trump. He pleaded not guilty to conspiring to reverse the results of the 2020 presidential election. The four counts against him were dismissed after he defeated Vice President Kamala Harris in the 2024 vote. That summer Mr. Trump won a landmark ruling expanding the bounds of presidential immunity in the Supreme Court case of Trump v. United States.Mr. Jordan reckons that “Mr. Smith likely circumvented key constitutional protections, including the Speech or Debate Clause, to spy on Members of Congress.” That is the provision of the Constitution that lawmakers “be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” It provides absolute immunity for legislative activities.Internal correspondence between Mr. Smith’s team and Justice Department officials disclose that the special counsel was concerned about the Speech or Debate privilege, though he ultimately concluded that his probe did not violate that protection. The subpoenas — and accompanying nondisclosure orders, meaning that the telecommunications companies did not tell the lawmakers they were being surveilled — were approved by Judge James Boasberg.Mr. Smith’s attorneys — Peter Koski and Lanny Breuer — responded in their own letter that their client did not lie but merely “did not proactively disclose information that was not responsive to a question asked.” They characterize the referral letter as evincing a “chilling eagerness 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.”Mr. Smith’s legal team assailed Mr. Jordan for purporting a “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).” The special counsel, the defense argues, could not have lied because the questions he was asked lacked the necessary precision.Messrs. Koski and Breuer note that “President Trump has repeatedly ordered that Mr. Smith be prosecuted and jailed. That is not the rule of law.” Mr. Smith has testified that he expects to be prosecuted, though he maintains his innocence. He has accused Mr. Trump of having “corrupted” the Justice Department and asserts that any implication that politics played a role in the January 6 and Mar-a-Lago charges against Mr. Trump is “ludicrous.” The statute under which Mr. Jordan wants Mr. Smith to be charged only criminalizes lies to Congress that are made “knowingly and willfully.” That means that prosecutors must prove an intent to deceive— what in Latin is called mens rea, or a “guilty mind.” In practice it makes perjury convictions difficult to obtain, because a defendant person is not liable for perjury if the answers to questions are truthful, even if the information is evasive.

‘Chilling’ Criminal Referral for Prosecution of Jack Smith Brings Him Closer To Facing Charges

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