Why a Trump ally’s ‘criminal’ case against Jack Smith is going to fall apart

The top Republican on the House Judiciary Committee is referring Jack Smith to the Department of Justice for criminal prosecution, escalating Donald Trump’s war with the man who investigated his attempts to overturn election results and keep classified documents at Mar-a-Lago.Trump’s Justice Department, now led by the president’s former criminal defense attorney, will ultimately decide whether to open an investigation into Smith, who Trump has publicly demanded be thrown in jail.But the referral from Rep.

Jim Jordan appears to rest on a flimsy premise.Smith is accused of misleading members of Congress during his testimony about the special counsel’s investigation into Trump’s efforts to reverse his loss during the 2020 presidential election. Smith “gave the impression” that he did not access “privileged text messages” from Republican lawmakers, according to Jordan.

“We now know this to be false,” Jordan wrote.Jordan says Smith provided “half truths” to the committee by not explaining where those text messages came from. But the panel never asked him that, and the messages were already in the possession of the National Archives.

open image in galleryHouse Judiciary Committee chair Jim Jordan is referring Jack Smith to the Department of Justice for criminal prosecution over his alleged ‘half truths’ to members of Congress, which Smith’s legal team has flatly denied (AFP/Getty)A crusade from Trump’s Republican allies in Congress to prosecute Smith kicked off last year, when Senate Republicans falsely accused the former special counsel and FBI investigators of “tapping” their phones.Instead, Smith’s team sought a “preliminary toll analysis” of nine senators’ phone records, which only include what numbers were called and when and for how long. They do not include the contents of messages or conversations, which would require a court-approved wiretap.

Agents were pulling data from the days immediately before and after January 6, 2021, when Trump and his allies were scrambling to derail a joint session of Congress to formally certify Joe Biden’s election.That call analysis appeared to be part of the FBI’s “Arctic Frost” investigation, which was opened one year earlier by Timothy Thibault, former assistant special agent in charge of the FBI’s Washington field office. That investigation was then assigned to Smith.

The “Arctic Frost” probe examined a “multifaceted conspiracy” to overturn election results in states that Trump lost, according to an unclassified memo outlining the investigation.Nevertheless, Senate Republicans have labeled the investigation a “modern Watergate” and pushed for legislation that would allow them to sue for up to $500,000 for each record that was legally obtained.open image in galleryJordan’s letter is addressed to Acting Attorney General Todd Blanche, the president’s former criminal defense attorney who sought to end the special counsel’s investigation into then-candidate Trump while working as his personal lawyer (AFP/Getty)Last week, Republican senators released documents showing Smith’s office also pulled messages from 44 members of Congress, including at least 11 Republican senators and six Republican House members.

Smith’s team, however, obtained those records from the National Archives, which maintains a record of messages and calls from all administrations, including Trump’s.None of the lawmakers whose messages were obtained by Smith’s team were the targets of a record request, which sought communications from White House figures from October 2020 through Jan. 20, 2021.

The messages were discovered on the phones of several figures at the center of the special counsel’s investigations, including former White House chief of staff Mark Meadows, Trump-allied attorney Rudy Giuliani and other chief aides.Nobody on the House Judiciary Committee ever asked Smith how he got hold of those messages.Instead, Smith was asked if he ever asked for a “search warrant for the content of any text messages from members.”

“No, I don’t recall that,” Smith said during a deposition in December.He also was asked about whether the “toll records” included the content of lawmakers’ phone calls or text messages.“No,” Smith replied.

Jordan now says Smith “willingly and knowingly made false representations” to the committee and wants the Justice Department to open an investigation to determine whether he did so to "obstruct the committee’s oversight.open image in galleryRep Jamie Raskin, the top Democrat on the House Judiciary Committee, said the referral should be ‘laughed out of court’ (Reuters)Trump applauded Jordan’s letter in a post on his Truth Social account at 5:31 a.m.

Thursday.“Justice at last???” he wrote.

Lawyers for Smith said in a letter responding to the letter that Jordan’s referral is 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