Washington — The Justice Department will face an uphill battle if it tries to prosecute former special counsel Jack Smith over allegations from House Republicans that he made false statements under oath because it lacks any evidence he committed a crime, former prosecutors say.
House Judiciary Committee Chairman Jim Jordan formally referred Smith to the Justice Department for prosecution late Wednesday night, claiming Smith “seemingly made willfully and intentionally false statements of material fact” when he testified during a deposition that he did not seek a search warrant to access text messages from members of Congress.
In his testimony, Smith told the committee his team only sought “toll records” for lawmakers, which are logs that contain data such as the originating phone number; the number called; and the date, time and length of the call. Toll records do not contain the content of calls or text messages.
Republicans say Smith deceived them by failing to disclose that his team obtained access to some text messages from 44 members of Congress, most of whom were 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.
The problem with Republicans’ claim, however, is that Smith was only questioned about the toll records — and not about whether he gained access to any text messages from members of Congress through other means, experts told CBS News. And in his responses, he answered the questions truthfully, they said.
“This referral letter is an embarrassment,” said Kyle Freeny, a former federal prosecutor who now works for the Washington Litigation Group.
“This is just a case of a mismatch between what they claim they wanted to know, and what they actually asked,” Freeny said. “If they have bad questions, they do not get the answers that they want. It’s almost like deposition 101.”
A spokesperson for the committee did not immediately respond to a request for comment.
In his referral letter to the Justice Department, Jordan accused Smith of possibly violating 18 USC 1001, which makes it a crime to “knowingly and willfully” make false, fictitious or fraudulent statements to the federal government.
One common defense against such a criminal charge is the legal principle known as “literal truth,” which holds that a person is not liable for perjury if the answers to questions are truthful, even if the information is evasive.
“If a witness answers the literal question truthfully, it’s not a false statement just because the questioner meant something broader,” said former prosecutor Gregory Rosen, who called the referral “legally untenable, if not ridiculous.”
“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,” added Rosen, who is now in private practice with the firm Rogers Joseph O’Donnell.
The Justice Department is not required to take up criminal referrals it receives from Congress.
However, the Trump Justice Department has in the past opened investigations following some referrals from Jordan and other Republicans, including one made against former CIA Director John Brennan over similar allegations that he lied in sworn testimony to Congress.
The investigation into Brennan, which is being led by a prosecutor in Miami, remains ongoing.
The Justice Department also separately pursued charges against former FBI Director James Comey in connection with congressional testimony.
Comey was indicted last fall over making false statements to Congress, but the case was dismissed after a federal judge determined the prosecutor who secured the indictment was unlawfully appointed. A federal appeals court will review that decision in September.
A Justice Department spokesperson told CBS News the department has received the Smith referral and is in the process of reviewing it.
Smith’s lawyers, in a July 22 letter to Jordan and acting Attorney General Todd Blanche, blasted the referral as being based on a “spurious claim.” They said it relied on an “unprecedented theory” that Smith provided false testimony “not because of what he said, but because of what he did not say.”
They said that the committee’s theory of criminal liability is dangerous 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.”
In their letter, they also noted that President Trump’s legal team was well aware of the fact that some text messages between members of Congress and White House staff were obtained when the information was shared with them during the discovery process.
“If Mr. Trump’s attorneys thought that Mr. Smith and his team had done something unlawful or improper in obtaining these text messages, they could have filed a motion to that effect,” wrote Smith’s lawyers Lanny Breuer and Peter Koski.
“Notably, they did not.”
One of Mr. Trump’s former lawyers who would have seen the evidence is Blanche, whose nomination to become attorney general in a permanent capacity is pending in the Senate.
A department spokesperson did not immediately respond to questions about whether Blanche will be involved in reviewing the criminal referral.
