Rep. Jim Jordan (R-OH) is being shamed by a former federal prosecutor, who says that the legal arguments behind a push to prosecute former special counsel Jack Smith are “an embarrassment.”
Jordan sent the referral Wednesday night to acting Attorney General Todd Blanche, CBS News reported, accusing Smith of making false statements in a closed-door deposition the previous December.
At that December 2025 session, Smith told the committee his team sought only telephone toll records — logs showing call numbers, times and durations, but not the content of calls or texts.
The referral came after newly released Justice Department documents showed Smith’s team had, in fact, accessed text messages belonging to 44 lawmakers — obtained not by subpoenaing Congress directly, but by requesting White House staff records from the National Archives.
“This referral letter is an embarrassment,” said Kyle Freeny, a former federal prosecutor now with 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,” he added.
Freeny and other former prosecutors pointed to a legal principle called “literal truth” — the idea that a witness cannot be charged with making false statements if the answers given were technically accurate, even if the questioner meant to ask something different.
“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,” Rosen added.
Smith’s attorneys sent their own letter to Jordan and Blanche, calling the referral a “spurious claim” built on an “unprecedented theory” — that Smith lied not because of what he said, but because of what he did not say.
“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 attorneys Lanny Breuer and Peter Koski.
“Notably, they did not.”
Jordan’s office did not respond to a request for comment. The Justice Department confirmed receipt of the referral but offered no further defense of the move.
The Justice Department is not required to act on criminal referrals from Congress.
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