▶ Watch Video: Jack Smith defends handling of Trump probes during first public testimony
The Republican chair of the House Judiciary Committee encouraged the Justice Department to look into criminally charging Jack Smith, alleging the former special counsel who brought charges against President Trump lied to Congress — allegations Smith’s lawyers called “spurious.”
The criminal referral Wednesday from Rep. Jim Jordan of Ohio stems from last year’s revelation that investigators obtained several Republican lawmakers’ phone records as part of a probe into Mr. Trump’s actions after the 2020 election. In a deposition last year, Smith testified that his team didn’t receive the contents of any phone calls or text messages since the records sought were “tolling records,” which only include details like the numbers a person called.
But last week, the Justice Department told lawmakers that in a separate subpoena for records held by the National Archives and Records Administration, Smith’s team obtained text messages between Trump-era White House staffers and dozens of members of Congress.
In light of that information, Jordan accused Smith of making “materially false statements” and said he improperly “failed to disclose” the subpoena to the National Archives.
“All individuals have an obligation to comply with a duly authorized congressional inquiry. Mr. Smith, a former public servant, is no different,” Jordan wrote. “Yet his testimony included intentionally false statements designed to obstruct the Committee’s oversight.”
Jordan asked Acting Attorney General Todd Blanche to investigate Smith. It is up to the Justice Department whether to pursue criminal charges following a criminal referral from Congress.
A Justice Department spokesperson confirmed to CBS News that it has received the referral letter and said it “will investigate all evidence of criminal conduct.”
Mr. Trump has called for Smith’s prosecution in the past. The president has frequently lashed out at officials who investigated him, including former FBI Director James Comey and New York Attorney General Letitia James, both of whom were criminally charged.
In a letter to Jordan and Blanche, attorneys for Smith called his answers to the committee’s questions “unimpeachably truthful.” They noted that Smith was asked about the subpoena for GOP lawmakers’ tolling records, not the request for records from the National Archives. They also said Smith’s team had disclosed the tech messages to Mr. Trump’s lawyers, who didn’t suggest at the time that anything “unlawful or improper” occurred.
“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,” the letter read.
The House Judiciary Committee’s top Democrat, Rep. Jamie Raskin of Maryland, called the criminal referral “baseless and vindictive,” arguing in a statement that the case “will get laughed out of court” if it’s heard by a judge.
“The Republicans fault Mr. Smith for not reading the minds of congressional investigators and for not volunteering information they didn’t ask for,” Raskin wrote Wednesday night. “This is absurd. Mr. Smith may be telegenic but he is not telepathic.”
Biden-era Attorney General Merrick Garland named Smith to the role of special counsel in late 2022, shortly after Mr. Trump launched his 2024 presidential campaign. He was put in charge of two Justice Department probes: One focused on Mr. Trump’s attempts to stay in office despite his 2020 election loss, and another looked at Mr. Trump’s handling of sensitive government documents that he took to his Mar-a-Lago club after leaving the White House.
Smith ultimately brought charges in both of those cases, marking the first-ever federal prosecution of a former president — and drawing the ire of Mr. Trump, who denied wrongdoing and accused Smith of acting out of political animus.
Both of the cases against Mr. Trump ended without charges in 2024. A judge tossed out the classified documents indictment on the grounds that Smith was invalidly appointed, and the Supreme Court threw a wrench in the 2020 election indictment by ruling that Mr. Trump is entitled to broad immunity for official acts. Smith dropped the election case after Mr. Trump won the 2024 race, but argued in a final report that Mr. Trump would have been convicted otherwise.
Both Smith’s final report and the 2023 indictment for election-related crimes delved into phone calls between lawmakers and Mr. Trump after the Jan. 6, 2021, Capitol riot. The indictment alleged the calls were part of a last-ditch attempt by the president to “exploit the violence” and talk Republicans into blocking Joe Biden’s victory from being certified.
The Senate Judiciary Committee revealed in October that the FBI analyzed the phone tolling records of eight Republican senators and one GOP House member, covering activity in the days surrounding Jan. 6, 2021.
The committee’s chair, GOP Sen. Chuck Grassley of Iowa, called the discovery “disturbing and outrageous” at the time, and alleged the FBI had “spied” on members of Congress. Grassley argued it was the latest example of “weaponization” of law enforcement — a theme Mr. Trump has often echoed when describing investigations into him and his allies.
Smith has long defended his conduct. His attorneys wrote in a letter last year: “It is well established that obtaining telephone toll records pursuant to a subpoena is a routine and lawful investigative step that does not violate an individual’s expectation of privacy.”
Then, last week, Grassley released a letter from the Justice Department that listed out 44 lawmakers whose text messages with the White House were sent to investigators on Smith’s team as part of the subpoena to the National Archives. The vast majority of the lawmakers in question were Republicans, though four Democrats are also listed, including Democratic Sen. Cory Booker of New Jersey.
The letter said the texts were almost immediately sent over to Smith’s staff, preventing them from being reviewed by a “filter team,” or a separate team responsible for screening evidence that might be privileged before investigators can look.
Grassley accused investigators of running “roughshod over the Constitution,” arguing the texts could be protected by the Speech or Debate Clause, which significantly limits criminal prosecutions of members of Congress. Wednesday’s criminal referral from Jordan also alleged Smith “likely circumvented key constitutional protections.”
“Jack Smith’s criminal investigation of President Trump was a runaway train that had no brakes,” Grassley said last week. “I hope my Democrat colleagues, several of whom had their own texts swept up, finally put partisanship aside and recognize the severity of these actions.”
Smith’s attorneys pushed back in their letter Wednesday night, writing that 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.”
They also said the filter team didn’t need to review the White House records since that process exists primarily to sort out evidence covered by protections like attorney-client privilege.
“Mr. Smith approached the investigation into President Trump as he has approached every other investigation throughout his career as a prosecutor-following the facts and the law while adhering to Department of Justice protocol and regulations,” Smith’s lawyers said.