Former special counsel Jack Smith has been referred to the Justice Department for possible criminal prosecution by Rep. Jim Jordan (R-Ohio), chairman of the House Judiciary Committee, over allegations that Smith provided false testimony regarding his investigation into former President Donald Trump’s efforts to overturn the 2020 election. The referral, submitted Wednesday, is based on newly released documents that contradict Smith’s December 2025 testimony concerning the scope of records obtained from lawmakers during the inquiry.
During his closed-door deposition in December 2025, Smith was questioned about subpoenas for toll records—metadata such as call times, durations, and phone numbers—of certain Republican lawmakers. When asked whether the subpoenas included the content of phone calls or text messages, Smith responded negatively. Jordan asserts that this answer was misleading in light of recently revealed records from Republican Senator Chuck Grassley of Iowa, which indicate that Smith’s team separately obtained the contents of text messages belonging to 44 members of Congress through a subpoena directed at the National Archives and Records Administration. Jordan argues that Smith’s testimony gave the false impression that neither he nor his team accessed the content of lawmakers’ privileged communications.
Jordan’s referral letter contends that providing a “half-truth” or omitting necessary information constitutes a false statement under the law. He urges the Justice Department to investigate Smith for knowingly making materially false statements while under oath. The department confirmed receipt of the referral on Wednesday evening, stating it “will investigate all evidence of criminal conduct.”
Smith’s attorneys have strongly denied the allegations, describing their client’s testimony as “unimpeachably truthful.” They emphasize that Smith’s answers specifically addressed subpoenas for toll records, which by definition do not include the content of communications. According to lawyers Peter Koski and Lanny Breuer, the questions and answers in the deposition made clear the focus was on toll records subpoenas rather than broader presidential records or text message contents. They further noted that the referral letter does not dispute Smith’s actual responses but appears to criticize him for not volunteering additional information on related matters.
Democrats on the Judiciary Committee, including ranking member Rep. Jamie Raskin (D-Maryland), criticized the Republican referral as politically motivated. Raskin argued that Smith answered questions accurately and faulted Republicans for seeking a basis to pursue prosecution based on information Smith was not specifically asked to provide. He characterized the referral as an embarrassment and a misuse of congressional oversight tools.
The referral also underscores broader political tensions surrounding the Justice Department under the Trump administration, which has previously pursued investigations against critics and associates of the former president. Smith, who led investigations charging Trump with conspiracy to overturn the 2020 election and mishandling classified documents at his Mar-a-Lago residence, resigned from the Justice Department in early 2025 shortly before Trump’s second inauguration. Both prosecutions were discontinued after Trump’s election victory in November 2024, consistent with longstanding departmental policy against indicting sitting presidents.
Smith’s lawyers described the referral as an attempt to weaponize the justice system against a nonpartisan official who pursued his duties based on facts and law. The Justice Department’s response indicates that while the referral lacks binding authority, it will review the evidence presented to determine whether further action is warranted.