Jim Jordan knows that a perjury case can’t be premised on truthful testimony.
Jim Jordan knows that a perjury case can’t be premised on truthful testimony.
T he referral by House Judiciary Chairman Jim Jordan (R., Ohio), seeking a Justice Department investigation and felony false statements charges against Biden Department of Justice special counsel Jack Smith is bogus. It’s just more partisan lawfare theater, which is now Washington’s bipartisan pastime.
Jordan is a sharp guy. Although he has never been a practicing lawyer, he has a law degree and he’s been on the Judiciary Committee for a long time, chairing it for nearly four years. He has thus grappled with lots of testimony that one party or the other has portrayed as deceitful. Undoubtedly, he knows there’s no actual basis for a prosecution against Smith for perjury or obstruction.
We know this because, in the referral letter he sent last week to Acting Attorney General Todd Blanche, Jordan is reduced to claiming that testimony by Smith “gave the impression” of something that was untrue — namely, Smith testified that, during his investigation of President Donald Trump’s effort to steal the 2020 presidential election, he did not target congressional Republicans in an effort to obtain the content of their communications with the Trump White House, when, in fact, Smith did obtain the content of some such communications. Translation: Jordan is not saying Smith actually said something that was untrue; rather, he’s saying that committee members may have gotten a misimpression from something Smith said that, while accurate, presented an incomplete and thus skewed picture of reality.
That’s a stretch because, if Smith’s testimony was incomplete, it’s due to the Republicans’ failure to ask the right follow-up questions, not because of Smith’s answers. In any event, as Jordan is well aware, the minimum requisite for a false statements charge is that, with intent to deceive, the witness made a statement that was literally false. The issue is what Smith said, not what “impression” Jordan and his colleagues formed.
The matter in controversy is straightforward. In the House testimony Jordan cites in his letter — which itself fails to note that the questions posed to Smith were plagued by factual inaccuracy — Smith was asked about acquiring telephone toll records from service providers for congressional Republicans. Smith correctly responded that these records did not reflect the contents of any conversations. It has since emerged that, in a separate, subsequent acquisition of information from the National Archives and Records Administration (NARA), which was targeted at Trump and his subordinates rather than members of Congress, Smith obtained text communications (i.e., the actual contents of the conversations) of 44 congressional Republicans.
Jordan and others claim the latter collection shows that Smith’s testimony about not obtaining contents of conversations was misleading. But that’s wrong because, at the hearing, Republicans asked Smith only about the first acquisition of toll records from phone companies, not the second acquisition of text messages from NARA.
That’s the dispute. Now, let’s flesh it out.
Smith investigated and ultimately indicted President Trump for attempting to reverse the result of the 2020 presidential election by, among other means, obstructing Congress — specifically, obstructing the constitutionally required joint session, at which the Senate and House were to count the state-certified electoral votes and ratify the winner of the election. The session was held on January 6, 2021, the day Trump supporters rioted at the Capitol, egged on by Trump’s provocative Ellipse speech; but Smith’s investigation scrutinized the entirety of Trump’s three-month soft coup attempt, not just the events at and around the riot.
Early in his investigation, Smith used a grand jury subpoena (as permitted by Section 2703(c) of the federal penal code) to obtain from telephone service providers the toll records of several Republican lawmakers who were in communication with President Trump around January 6, 2021 (the subpoena narrowly covered the period from January 4 through 7, 2021). Toll records are data about communications (e.g., date and time, duration, to and from numbers) but not the content of the communications (i.e., what the interlocutors discussed).
Subsequently, Smith similarly issued another subpoena to NARA, which is the repository for presidential records. The prosecutor did that because, in this instance, he was homing in, not on Congress’s communications, but on communications by President Trump and his underlings. In that regard, he focused not just on the obstruction of Congress around the time of the January 6 Capitol riot, but on all the different facets of the months-long scheme to keep Trump in power after he lost the 2020 election.
Ergo, Smith’s NARA subpoena compelled the production of text messages, not just for a few days around the Capitol riot, but from October 2020 through the end of Trump’s first term in January 2020 — i.e., the time frame of the conspiracy Smith ultimately charged in the indictment. According to Senator Chuck Grassley (R., Iowa), the Trump agents and subordinates whose communications were targeted by the subpoena included Mark Meadows, Dan Scavino, Ivanka Trump, Stephen Miller, Peter Navarro, John Ratcliffe, Kash Patel, Rudy Giuliani, Kellyanne Conway, and Vice President Mike Pence. (Technically, the vice president, as presiding officer of the Senate, has a foot in both the executive and legislative branches; we know based on other information that Smith focused on Pence’s communications with Trump — which mainly raised executive privilege issues, not congressional privileges.)
It turned out that the materials NARA provided included text communications involving some 44 Republican lawmakers. Again, Smith’s subpoena did not target members of Congress; instead, their communications were incidentally acquired because they texted with Trump and/or his subordinates, whose communications were targeted.
Now, let me pause to note a couple of related things that are fair game for complaining about Smith’s performance but do not bear on the question whether he gave false testimony.
There is a live controversy over whether, with respect to at least two of the congressional phones for which toll records were subpoenaed (those of Senators Ted Cruz (R., Texas) and the recently deceased Lindsey Graham (R., S.C.)), Smith improperly obtained a court nondisclosure order directing the service providers not to notify the recipients. (A statute, Section 6628, prohibits nondisclosure orders for phones set up by the Senate, though it would probably not apply to senators’ personal cellphones.)
There is similarly a dispute over whether, in connection with the NARA subpoena, Smith violated Justice Department protocols. He is alleged to have failed to arrange for a “filter team” of prosecutors to review the records before Smith got access to them. When it is likely that subpoenaed materials will contain communications that are privileged — e.g., executive privilege, congressional speech or debate clause privilege, or attorney-client privilege — the DOJ’s practice is to set up a filter team (a group of prosecutors and agents who are not assigned to the investigation) to review the materials and remove communications that might be privileged so that the investigative team does not peruse them. (If prosecutors and agents assigned to an investigation gain access to privileged materials, it can cause big problems, potentially including the dismissal of charges.)
Assuming Smith did these things (I don’t know if he did or didn’t), they were serious missteps, even if they didn’t rise to the level of criminal misconduct. They would be of a piece with other abuses and excesses of Smith’s investigation: guiding his prosecutorial moves by the election calendar (expressly forbidden by DOJ rules); stretching criminal statutes to the breaking point; disregarding the likelihood that Trump would have immunity for many of the actions Smith cited; generally running roughshod over Trump’s due process rights (e.g., forcing him to prepare for two complex trials on an impossibly tight schedule, in jurisdictions a thousand miles from each other, knowing both that the pretrial proceedings would be extensive and that Trump was simultaneously facing trials in criminal prosecutions in two state jurisdictions); mulishly declining to place himself under the supervision of a confirmed U.S. attorney when that simple, painless move would have prevented the Florida district court from dismissing the Mar-a-Lago documents case over a technical appointments clause issue; and absurdly overcharging the Mar-a-Lago case (larding the indictment with dozens of Espionage Act counts even after the same Biden DOJ declined to charge President Biden for analogous offenses) — thus foiling his own plan to get Trump to trial on a strong case prior to Election Day).
Aristotle described such flaws of judgment and arrogance as hamartia and hubris (and this wasn’t the first time in his career that Smith tripped himself up this way). But they don’t make Smith a perjurer. They have nothing to do with the accuracy of his congressional testimony, the issue Jordan has raised.
Now, let’s talk false statements because, again, prosecutions for that offense are solely about the words and intentions of the witness, not the resulting impressions (or misimpressions) formed by the questioner or the audience.
Criminal law is not a test of morality; it is a constitutional process for depriving lawbreakers of their right to liberty. Let’s say my wife or my friend asks me a question and I give an answer that’s literally accurate but that I know is incomplete because my wife or friend would expect me — as I would reciprocally expect them — to volunteer details we all know they’d want to be informed about. As a matter of morality, that would mean I failed; it would raise important questions about my character, which would matter if, say, I were seeking public office. But in the legal world of perjury and obstruction, the stakes, the burden of proof, and the analysis are wholly different.
Because it involves potential imprisonment, fines, and the stigma of criminal conviction for a person who is presumed innocent, a prosecution imposes burdens on the government, not the accused. Perjury is a measure of the questioner’s precision, not the witness’s character and cooperativeness. Hence, as I’ve noted in connection with past allegations by each party that some member of the opposition has committed perjury: To have a prosecutable false statement, the questioner must be crystal clear about what is being asked. The witness is obliged only to provide a truthful answer to the precise question asked and is under no duty to read the questioner’s mind. That is, the witness need not volunteer additional information about which the questioner might be curious.
If the witness gives an answer that is literally accurate, there can be no false statement prosecution. That rule holds even if the witness had it in his mind to be dodgy, and even if the witness is secretly delighted that the questioner failed to pose follow-up questions calling for details the witness would prefer not to share.
Here, before we even get to Smith’s answers, we must note the inaccuracy of the committee’s questions, which itself would have doomed any potential perjury case.
As Jordan reports, Smith was asked: “Did you seek a search warrant for the content of any text messages from Members?” (Emphasis added.) Smith, however, did not use a search warrant to obtain evidence about communications, either from members of Congress or from Trump and his subordinates. He used a grand jury subpoena. The congressional subpoena to telephone service providers was pursuant to the Stored Communications Act (codified at the above-linked Section 2703). Search warrants and subpoenas are very different things. With the former, the prosecutor goes to a judge first and, if he can show probable cause that a crime was committed and evidence of it is likely to be found in the proposed search, the judge issues an order (the warrant) authorizing the search. To the contrary, a prosecutor may simply issue a grand jury subpoena to a service provider for toll records — neither a showing of cause nor court permission is necessary (although if the prosecutor wants an order directing the service provider not to disclose the subpoena to its customer, that must be sought from the court).
Consequently, when asked if he had sought a search warrant for congressional text messages, Smith could legitimately have just responded “no,” without elaboration. It was the committee’s burden to ask accurate questions, not Smith’s to correct them, and it’s virtually impossible to establish perjury when the premise is an inaccurate question. (In a responsive letter to Jordan and Blanche, Smith’s lawyers correctly contend that a perjury case cannot rest on literally accurate answers, but they oddly fail to draw attention to the committee’s erroneous question. In fact, they concede that the “toll-record subpoenas were the focus” of the questions about a “search warrant.” Since they’re defending against a false-statement allegation, it would make more sense to highlight the flaw in the question.)
Beyond that, the committee’s questions were about whether Smith targeted the text messages of members of Congress. He responded that when it came to targeting members, he recalled seeking their toll records but could not recall asking specifically for their text messages.
Then there was this exchange:
Q: Did the toll records that you requested from the Senators, did they include the content of the phone calls?
A: No.
Q: Did the records that you requested, the toll records from the Member of Congress, include the content of text messages?
A: No.
There is nothing inaccurate or misleading about this testimony. To the extent Smith targeted lawmakers’ communications, he correctly testified that he sought toll records; to the extent Smith obtained text messages from 44 members of Congress, that was incidental to his targeting the communications of Trump and his subordinates, about which the committee did not ask Smith (at least in the testimony Jordan cites).
Jim Jordan knows that a perjury case can’t be premised on truthful testimony. More to the point, he knows that for more than eight months, the Trump Justice Department (which would not hesitate for a nanosecond to indict Jack Smith if it could conjure up even a barely plausible basis to do so) has had all of the information cited in Jordan’s referral — Smith’s December 2025 testimony, plus the subpoenas and the materials produced in answer to them during Smith’s 2023–24 probe; yet there have been no charges against Smith. Todd Blanche, a highly experienced federal prosecutor, knows both that there is no grist for a criminal case against Smith and that, if it tried to bring one, the DOJ would concurrently be humiliated in court and remind the public of Trump’s misconduct that was the focus of Smith’s probe.
Lawfare is a dirty business. Smith’s overzealousness as a prosecutor does not make him a criminal, just as the dismissal of the two indictments Smith brought against Trump — on technical grounds, not on the merits — does not establish the president’s innocence. When Biden was president and Smith had the whip hand, he put Trump through the wringer. Trump has the whip hand now so, with Jordan’s help, it’s Smith’s turn in the wringer. That may be how politics is done today . . . but it will never be justice.