Representative Jim Jordan, chairman of the House Judiciary Committee, asked the Justice Department on Wednesday to investigate whether Jack Smith, the former special counsel, perjured himself when he testified about his inquiry of President Trump’s efforts to overturn the 2020 election.
According to a copy of the referral reviewed by The New York Times, Mr. Jordan claimed that Mr. Smith “seemingly made willfully and intentionally false statements of material fact” when questioned last December under oath about his efforts to obtain phone records of 44 lawmakers who communicated with Mr. Trump and his team.
The criminal referral could provide a catalyst for a prosecution of Mr. Smith — in many ways the top target of the president’s campaign of retribution.
“The responses provided by Mr. Smith gave the impression that neither Mr. Smith nor his team had access to the content of members’ privileged text messages,” Mr. Jordan wrote in a letter to Todd Blanche, the acting attorney general who led Mr. Trump’s criminal defense team in the two federal cases brought by Mr. Smith. “We now know this to be false.”
Mr. Smith’s legal team accused Republicans of intentionally taking his answers out of context to provide an excuse to investigate him. They say he was responding narrowly to the inquiry about the toll records, not speaking more broadly about an investigation he is precluded from publicly discussing without approval from Trump administration officials.
Mr. Smith’s lawyers, Peter Koski and Lanny Breuer, said in a letter responding to the referral, obtained by the Times, that the referral was based on a “spurious claim.”
“The referral is made not because Mr. Smith made a false statement, which the letter concedes, but because he did not proactively disclose information that was not responsive to a question asked,” they wrote.
“During his testimony, Mr. Smith provided truthful, responsive answers and candidly discussed his work,” they added. “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.”
Mr. Smith has long said he expected to be prosecuted. Many of Mr. Trump’s Republican allies in Congress have been wary of going after Mr. Smith, whom they see as a credible and dangerous adversary itching for an opportunity to publicly revisit evidence that Mr. Trump tried to overturn a free and fair election.
Criminal referrals are recommendations without the force of law and do not necessarily lead to prosecutions or even investigations. But it will almost certainly attract Mr. Trump’s notice and increase the pressure inside the department to go after someone the president has identified as the man who led a politically motivated attack on himself and his supporters.
The referral was prompted by recent disclosures to Senate Republicans that Mr. Smith’s team obtained messages from lawmakers who communicated with White House officials after Mr. Trump’s defeat in 2020. It was part of his effort to uncover evidence Mr. Trump coordinated a conspiracy to subvert the election results.
In the exchange cited in Mr. Jordan’s letter, Mr. Smith was asked about his request for toll records — metadata of calls and texts without the content of communications — from members of Congress. Such requests are common in complex criminal investigations to establish timelines and provide proof of communication.
“Did the toll records that you requested from the senators, did they include the content of the phone calls?” a Republican committee staff member asked Mr. Smith.
“No,” he replied.
Senator Josh Hawley, a Missouri Republican whose toll records and text messages were obtained by the special counsel, suggested during a committee hearing last week that Mr. Smith had perjured himself.
“What really gets me at the end of the day is he lies about it,” he said. “I mean, he has lied and lied about it.”
Last week, the Justice Department handed over to Senator Charles E. Grassley, Republican of Iowa, records showing that Mr. Smith’s team obtained the phones of White House officials and close Trump allies from the National Archives dating from October 2020 through Jan. 20, 2021.
The batch included private communications with 40 congressional Republicans, among them Mr. Grassley and several other member of the committee, including Senator Lindsey Graham of South Carolina and Mr. Hawley, who has repeatedly demanded the department investigate Mr. Smith.
The records also included messages from four Democrats — Senator Cory Booker of New Jersey and three members of the House, Representatives Adam Smith of Washington, Josh Gottheimer of New Jersey and Karen Bass of California, who is now the mayor of Los Angeles.
Mr. Grassley accused Mr. Smith of violating the Constitution’s speech and debate clause, which prohibits the executive branch from encroaching on the rights of the legislative branch, in a statement calling his investigation “a runaway train that had no brakes.”
The lawmakers were not the targets of the records request, however. Their messages were found on the phones of many of those at the center of the investigation into the Trump team’s efforts to overturn President Biden’s victory, including the former White House chief of staff Mark Meadows, Ivanka Trump, and allies and aides including Stephen Miller, Peter Navarro, Kash Patel, Rudolph W. Giuliani, and Kellyanne Conway.
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