House Judiciary Committee Chairman Jim Jordan made his Jim Jordan referral Jack Smith to the Justice Department late Wednesday night, asking prosecutors to consider possible charges over alleged false statements in sworn testimony. The referral centers on whether Smith’s answers about congressional text records were false or matched the questions he was actually asked.
Jordan said Smith “seemingly made willfully and intentionally false statements of material fact” and accused him of possibly violating 18 USC 1001. That statute makes it a crime to knowingly and willfully make false, fictitious or fraudulent statements to the federal government.
Jack Smith deposition record
Smith told the committee he did not seek a search warrant to access text messages from members of Congress. He said his team only sought toll records for lawmakers, which include the originating phone number, the number called, and the date, time and length of the call.
The records do not include the content of calls or text messages. Republicans said Smith deceived them by failing to disclose that his team obtained access to some text messages from 44 members of Congress, most of them Republicans. Prosecutors on Smith’s team obtained the records after asking the National Archives to turn over cellphone data for White House personnel as part of a separate documents request.
Kyle Freeny on the referral
Kyle Freeny, a former federal prosecutor, called the referral letter an embarrassment. “This is just a case of a mismatch between what they claim they wanted to know, and what they actually asked,” he said.
Gregory Rosen, another former prosecutor, called the referral “legally untenable, if not ridiculous.” He said, “If a witness answers the literal question truthfully, it's not a false statement just because the questioner meant something broader,” and added, “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. If Congress wanted different answers, they should have asked different questions,”
Justice Department decision
The Justice Department is not required to act on a congressional criminal referral, and the Trump Justice Department has opened investigations after some referrals from Jordan and other Republicans, including one involving former CIA Director John Brennan. The practical question now is whether prosecutors treat Jordan’s letter as enough to begin their own review or leave the matter where Congress placed it.
