GOP’s Jack Smith referral fails to show he committed a crime, ex-prosecutors say
Washington — The Justice Department faces an uphill battle if House Republicans try to sue former special counsel Jack Smith over allegations that he perjured under oath because there was no evidence of wrongdoing, former prosecutors say.
House Judiciary Committee Chairman Jim Jordan officially shipped Smith filed suit with the Justice Department for prosecution late Wednesday night, alleging that Smith “apparently made deliberate and willful misrepresentations of material facts” when testifying during deposition that he did not seek a search warrant to access text messages from members of Congress.
In his testimony, Smith told the committee that his team was only looking for “pay records” for MPs, which were logs containing data such as source phone numbers; dialed number; and the date, time, and length of the call. Charge records do not include the content of calls or text messages.
Republicans say Smith deceived them by not disclosing that his team had access to some of the text messages of 44 members of Congress, most of them Republicans. Prosecutors on Smith’s team obtained the records after asking the National Archives to turn over cellphone data from White House staff as part of a separate document request.
But the problem with the Republicans’ claim is that Smith was only questioned about toll records or a search warrant that specifically targeted lawmakers’ texts, and not about whether he had accessed any text messages from members of Congress through other means, experts told CBS News. In their answers, they said that he answered the questions correctly.
“This referral letter is a disgrace,” said Kyle Freeny, a former federal prosecutor who now practices with the Washington Litigation Group.
“It’s just a case of mismatch between what they claim they want to know and what they’re actually asking,” Freeny said. “If they have bad questions, they don’t get the answers they want. It’s almost like testimony 101.”
A committee spokesman did not immediately respond to a request for comment.
In his referral letter to the Department of Justice, Jordan accused Smith of possibly violating 18 USC 1001; This makes it a crime to “knowingly and willfully” make false, fabricated or fraudulent statements to the federal government.
A common defense against this type of criminal charge is the legal principle known as “actual truth”; This principle holds that a person is not liable for perjury if the answers to questions are truthful, even if the information is evasive.
“If a witness answers a question literally, it is not a false statement because the person asking the question meant something broader,” former prosecutor Gregory Rosen said, calling the prompt “legally indefensible, if not ridiculous.”
“The burden is on the attorney taking the deposition to ask the right question — not on the witness who guesses what isn’t asked and does so voluntarily. If Congress wanted different answers, they should have asked different questions,” added Rosen, who is now in private practice with the firm Rogers Joseph O’Donnell.
The Justice Department is not required to accept criminal guidance it receives from Congress.
However, the Trump Justice Department has opened investigations in the past at the direction of Jordan and other Republicans. one was made Former CIA Director John Brennan was sued over similar allegations that he lied in his testimony to Congress.
Investigation into BrennanThe investigation, led by a prosecutor in Miami, is ongoing.
The Justice Department also separately pursued charges related to congressional testimony against former FBI Director James Comey.
It was Comey accused He was sued last fall for making false statements to Congress. dismissed After a federal judge determined that the prosecutor who prepared the indictment was unlawfully appointed. The federal appeals court will review that decision in September.
A Department of Justice spokesperson told CBS News that the department had received Smith’s referral and was in the process of reviewing it.
In a July 22 letter to Jordan, Smith’s attorneys and Acting Attorney General Todd Blanche harshly criticized the referral, saying it was based on a “spurious allegation.” They said it was based on an “unprecedented theory” that Smith testified “not because of what he said, but because of what he didn’t say.”
They said the committee’s theory of criminal liability is dangerous and risks “ensnaring any witness who testifies before a congressional committee who does not proactively disclose information that does not answer a question asked.”
Their letter also stated that President Trump’s legal team was well aware of the fact that some text messages between members of Congress and White House staff were obtained when they were shared with them during the discovery process.
“Mr.
“They specifically didn’t do that.”
One of Mr. Trump’s former lawyers who could see the evidence is Blanche, whose nomination to become attorney general in her permanent capacity is pending in the Senate.
A department spokesman did not immediately respond to questions about whether Blanche would participate in the review of the criminal referral.
