A letter from former special counsel Jack Smith‘s lawyers went public Friday, calling Rep. Jim Jordan‘s (R-OH) criminal referral a bad-faith attack on a “nonpartisan public servant.”
Attorneys Lanny Breuer and Peter Koski wrote the letter July 22 to Jordan and Acting Attorney General Todd Blanche, calling the referral “spurious.”
Legal journalist Roger Parloff posted a downloadable version Friday, calling it a “succinct demolition of Jim Jordan’s bad-faith accusations.”
Jordan referred Smith to the Justice Department last week, claiming Smith made false statements during his December 2025 deposition before the House Judiciary Committee. Smith had testified that his team had sought only call records from lawmakers during his investigations into Trump — call logs showing who called whom, with no message content.
Jordan said Smith should have volunteered that his team separately obtained texts from 44 members of Congress through a National Archives request for White House phones. He referred Smith under the federal false-statements law.
Smith’s legal team carefully dissected Jordan’s logic in the July 22 letter.
“During his testimony, Mr. Smith provided truthful, responsive answers and candidly discussed his work as Special Counsel,” Breuer and Koski wrote. “Those answers are unimpeachably truthful. Notably, the referral letter does not contest the truthfulness of Mr. Smith’s answers.”
Jordan’s fallback, the letter said, was an “unprecedented theory” — that Smith committed perjury “not because of what he said, but because of what he did not say.”
“This dangerous theory of criminal liability has no limiting principle 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,” Breuer and Koski wrote.
The D.C. Circuit Court of Appeals already rejected that theory, the letter noted, citing a ruling that held witnesses are not required to volunteer answers to questions they were never asked.
Former federal prosecutors have repeatedly criticized the legal theory put forth by Jordan.
“This referral letter is an embarrassment,” CBS News quoted former federal prosecutor Kyle Freeny as saying.
“If they have bad questions, they do not get the answers that they want. It’s almost like deposition 101,” Freeny added.
Former prosecutor Gregory Rosen called the referral “legally untenable, if not ridiculous.”
“If Congress wanted different answers, they should have asked different questions,” Rosen said.
Jordan also argued the texts violated the Constitution’s Speech or Debate Clause, which protects lawmakers’ official acts from scrutiny.
But the letter from Smith’s lawyers dismantled that too, noting the messages were voluntarily sent by members of Congress to White House officials and did not involve any intrusion into legislative business.
Blanche, Trump’s former personal defense attorney in both of Smith’s federal cases against him, would have received the congressional texts as part of that discovery process — yet never challenged their legality in court, the letter noted.
“If President 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,” Breuer and Koski wrote. “Notably, they did not.”
“President Trump has repeatedly ordered that Mr. Smith be prosecuted and jailed,” Breuer and Koski wrote. “That is not the rule of law.”
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