(CNN) — Republican Rep. Jim Jordan, chair of the House Judiciary Committee, on Wednesday night asked the Justice Department to consider criminally charging special counsel Jack Smith, who previously prosecuted President Donald Trump, according to a letter sent to DOJ obtained by CNN.
Jordan alleges Smith misled the committee in closed-door testimony late last year. Jordan’s concerns are largely based around Smith’s team of prosecutors obtaining text messages between Trump administration officials and members of Congress in their investigation of Trump and his top aides’ response to his 2020 election loss, according to the criminal referral letter Jordan sent to DOJ.
The Justice Department—with Trump’s primary defense attorney at the time, Todd Blanche, now leading the department and on the verge of Senate confirmation as attorney general— has already responded that it “will investigate all evidence of criminal conduct,” according to a spokesperson. The spokesperson confirmed the Department has received Jordan’s referral.
Jordan’s criminal referral on Smith, and the Justice Department’s swift response, fulfills a longtime Republican wish to investigate and potentially prosecute Smith.
Trump himself has called for Smith to be jailed, especially since he earned the dismissal of the criminal charges Smith had brought against him and returned to the presidency last year.
The Justice Department regularly receives criminal referrals from Congress, and the department then decides whether it merits charges or even an investigation. The current Republican-led Congress has asked the Justice Department to investigate others from the Smith investigation who haven’t been charged.
But the current makeup of DOJ, and the known wishes of the president to criminally pursue Smith and rewrite the findings of his investigation and the public record of January 6, 2021, make Jordan’s move a notable escalation.
Smith’s lawyers, in a response letter sent to Jordan and Blanche late Wednesday and obtained by CNN, say Smith’s answers about his investigation looking at members’ communications were “unimpeachably truthful” and that Jordan’s accusation that Smith made a false statement is “spurious.”
Ranking Member Jamie Raskin blasted the GOP move, saying in a statement, “This referral, if ever brought before a judge, will get laughed out of court. But success on the merits is not the goal. It is meant to harass Jack Smith.”
The Maryland Democrat added, “It is meant to whitewash their own participation in a scheme to overthrow our elections.”
Accusation of ‘half-truths’
In Jordan’s letter, he accuses Smith of taking investigative steps to “spy on Members of Congress” and says Smith made “half-truths” in a December deposition on Capitol Hill when responding about records related to members of Congress that had become part of evidence the Smith prosecutors reviewed.
Jordan specifically asks the Justice Department to examine whether Smith broke the law that bars making false statements to Congress.
In his allegation, the committee chair says Smith testified he hadn’t pursued the content of member’s communications. Smith testified his team had only secured search warrants for logs of incoming and outgoing calls, known as toll records, but not the content itself.
Smith’s counsel argues that Jordan has made no real claim of a lie.
“The referral is made not because Mr. Smith made a false statement—the letter concedes he did not—but because he did not proactively disclose information that was not responsive to a question asked,” the letter on behalf of Smith, written by his lawyers Lanny Breuer and Peter Koski, said. “This referral reflects 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.”
Jordan’s letter says records the House Republicans obtained earlier this month show “that Mr. Smith’s team obtained text messages of 44 Members of Congress—implicating both Republicans and Democrats in both chambers of Congress—that may have included privileged content.”
Yet when the special counsel’s office collected text messages and the content of communications of members, those records came from the National Archives’ compendium of official White House phones in the first Trump administration, according to records that have been released and Jordan’s letter. At the time, the prosecutors were pursuing the messages of top officials around Trump leading up to and on January 6, 2021, and members of Congress had been messaging with some of those executive branch officials.
Members of Congress have also been up in arms for months over the Smith special counsel office obtaining the toll records from phone companies, calling it a violation of Congress’ constitutionally protected privacy. Communications related to legislative work are generally protected from being used in criminal proceedings by prosecutors, under the Speech or Debate Clause of the Constitution.
It’s been well-known for years — and not unlawful — that Smith’s team obtained toll records and other records of members, including some who were in touch with the Trump White House leading up to the Capitol riot and during the attempt to block the electoral college certification of a Biden presidency. Those types of investigative approaches are common practice in federal criminal cases. No members of Congress nor White House officials other than Trump were charged by Smith.
Smith’s lawyers also say his special counsel office’s work didn’t breach members of Congress’ Constitutional protections when they obtained the Trump White House phones’ messages.
The Speech or Debate Clause “does not prevent prosecutors from using or reviewing text messages between Members of Congress and members of the Executive Branch in an investigation and prosecution of an Executive Branch official, which is precisely what happened here,” the response letter said.
This story has been updated with additional details.
Hannah Rabinowitz contributed to this report.
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