Former special counsel Jack Smith faces a formal criminal referral to the Justice Department over alleged false statements to Congress, and his allies are already working to dismiss the case before investigators can even open the file.
House Judiciary Committee Chairman Jim Jordan sent the referral to acting Attorney General Todd Blanche on Wednesday, accusing Smith of lying under oath during a December 2025 deposition about whether his team accessed the personal text messages of members of Congress. Jordan's letter lays out what he calls "strong evidence" that Smith's sworn testimony directly contradicts newly obtained DOJ records, records that show Smith's prosecutors read texts belonging to more than 40 sitting lawmakers from both parties.
The Justice Department confirmed receipt. "The Department can confirm receipt of the criminal referral from the House Judiciary Committee and will investigate all evidence of criminal conduct," a DOJ spokesperson told Fox News.
Within hours of the referral becoming public, former federal prosecutor Andrew Weissmann appeared on MSNBC to dismiss the entire matter. His verdict: the perjury allegation is "preposterous."
Weissmann, a longtime critic of the Trump administration who served on Robert Mueller's team, argued on Jen Psaki's program that Jordan's case collapses on close inspection. His reasoning centers on the specific wording of the question Smith was asked during the closed-door deposition.
As Weissmann recounted on MSNBC:
"He was asked, 'Did you get the content of text messages from members of Congress through a search warrant? Did you get the content of text messages of members of Congress through a search warrant?' To which he said, 'No, I didn't.'"
Weissmann called that answer "100 percent truthful." His argument: Smith obtained the text messages not through a search warrant directed at lawmakers but through the National Archives, which held communications of White House staff. Because the question specified "search warrant," Weissmann contends, Smith's denial was technically accurate.
"The fact that Jack Smith also got documents from the National Archives was not asked in any way, shape or form."
Rep. Jamie Raskin, the top Democrat on the Judiciary Committee, echoed that line in a written statement. "They did not even ask whether Mr. Smith's team had ever reviewed text messages from Members," Raskin said. "Jack Smith could not have lied because Republican Members never even asked the question their theory is based on."
Jordan sees it differently. The chairman's position is that Smith understood the intent of the questioning, to determine whether his team had accessed lawmakers' private communications, and deliberately gave answers designed to leave the opposite impression. Jordan's letter to Blanche states that Smith's responses "gave the impression that neither Mr. Smith nor his team had access to the content of Members' privileged text messages," AP News reported. "We now know this to be false."
The gap between what Smith said and what his team actually did is the core of the referral. Senate Judiciary Committee Chairman Chuck Grassley released documents showing Smith's office reviewed text messages from 44 members of Congress, senators and representatives from both parties, though the Washington Examiner reported the records appeared to target Republicans disproportionately. Smith's team obtained the messages through a subpoena to the National Archives, not through warrants served directly on the lawmakers.
That distinction matters legally, but it also raises the question Jordan is pressing. If Smith knew his team had read the texts of 44 lawmakers, and if the committee was plainly asking whether his team had accessed such communications, did Smith's narrowly worded denial amount to an effort to mislead Congress?
Jordan's letter does not hold back. "His conduct can only be understood as an effort to thwart the Committee's inquiry by intentionally making false statements and representations before Congress," the chairman wrote.
The scale of Smith's data collection adds weight to Jordan's complaint. The so-called "Arctic Frost" investigation involved 197 subpoenas issued to 34 individuals and 163 businesses. Records were requested on more than 430 individuals and organizations. Sen. Ted Cruz put it bluntly: "When you have the Biden Department of Justice subpoenaing 20% of the Republicans in the Senate, it is an egregious abuse of process."
Newly obtained DOJ documents, released to Grassley on July 14, showed that Smith's team had direct access to text-message content from members of Congress, material that a "filter team" designed to protect legally privileged communications had allegedly been bypassed, according to the New York Post. If confirmed, that bypass would represent a separate procedural failure layered on top of the testimony dispute.
Jordan's referral is the latest in a series of revelations about conduct inside Smith's office. Separate allegations have emerged that classified material was mishandled by Smith's own team during the Trump prosecution, an irony not lost on critics, given that Smith was prosecuting the former president over document handling.
Smith's attorneys, Peter Koski and Lanny Breuer of Covington & Burling, pushed back forcefully. "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," they said in a statement reported by Breitbart.
The criminal referral does not guarantee prosecution. Jordan's letter is a recommendation, not an indictment. The DOJ must now decide whether to open a formal investigation, a decision that falls to the same department Smith once led a team inside. But the confirmation that the department will "investigate all evidence of criminal conduct" suggests the referral will not simply be filed away.
The broader context matters. The DOJ under the Trump administration has pursued cases against several figures its critics describe as political opponents, including New York Attorney General Letitia James and former FBI Director James Comey. The department is also reportedly examining a potential perjury case against writer E. Jean Carroll, who accused President Trump of sexual assault.
Smith himself has weighed in on that climate. In a separate MSNBC appearance, the former special counsel said it "angers" him to see public servants who work on cases unfavorable to Trump or his allies "demonized for doing their jobs."
That framing, the prosecutor as victim, is precisely the narrative Weissmann and Raskin are constructing. They want the public to see Jordan's referral as political retaliation, full stop. Weissmann went further than his usual hedging. "I usually am more careful to say, you know, it seems like or we don't know everything they have," he said. "You cannot read this letter and in any way view this as perjury."
But the facts Jordan has assembled tell a more complicated story. Smith was asked about accessing lawmakers' messages. He said no. His team had, in fact, read texts from 44 of them. The question now is whether the gap between what Smith said and what his office did was a matter of careful lawyering, or deliberate deception. That is a question for investigators, not cable-news commentators.
The referral also arrives alongside other troubling disclosures about Smith's operation. A former DOJ attorney connected to the probe was indicted for allegedly stealing sealed documents, and senators have raised questions about how Smith's team handled constitutionally protected communications from sitting members of Congress.
Jordan's formal referral now puts the matter squarely in the DOJ's hands. Smith's defenders insist the whole thing is a semantic misunderstanding. His critics say a prosecutor who built his career on holding others to the strictest possible reading of the law should expect the same standard applied to his own words.
When the man who prosecuted a president can't give Congress a straight answer about reading lawmakers' private messages, the problem isn't semantics, it's accountability.
