House Republicans are asking the Justice Department to criminally investigate former special counsel Jack Smith for lying under oath about something they never actually asked him under oath. That's not a paraphrase. That is, according to Smith's own lawyers, the literal situation. Welcome to American jurisprudence, 2026 edition.
Jim Jordan Sends a Letter, Democracy Continues Its Slide
House Judiciary Chairman Jim Jordan sent a letter to the DOJ late Wednesday arguing that Jack Smith had made "willfully and intentionally false statements" when he testified before Congress back in December. The charge sounds serious. Then you read the details.
Smith's lawyers, Lanny Breuer and Peter Koski, released their own letter Wednesday night laying out the obvious problem: Republicans never actually asked Smith directly about the thing they're now claiming he lied about. Their argument, stripped to its bones, is that Smith should have volunteered information about something they didn't ask him. They want to prosecute a man for failing to read their minds.
Rep. Jamie Raskin, the top Democrat on the Judiciary Committee, put it plainly in a statement: "Jack Smith could not have lied because Republican Members never even asked the question their theory is based on." Raskin added the referral would be "laughed out of court" if it ever got in front of a federal judge. That's a polite way of saying this is not a serious legal argument.
What the Actual Dispute Is About
Let's be clear about the underlying facts, because they matter. NPR reports that the testimony at the heart of this involves subpoenas Smith's team issued for phone records of lawmakers who were in contact with top White House officials and allies around January 6, 2021. Smith's team also gathered text messages from National Archives records of White House phones, which included exchanges between White House aides and those same lawmakers.
Republicans are furious about this. They were furious about it when it happened. They've been furious about it ever since. But during Smith's December testimony, they apparently never asked him a direct question about the text message collection specifically. Now, according to Smith's lawyers, they want to punish him for not proactively disclosing it on his own. That's not a perjury charge. That's a gotcha in search of a crime.
Smith oversaw two of the most significant federal investigations in modern American history: the classified documents case involving Trump's retention of materials at Mar-a-Lago, and the 2020 election interference case. Grand juries indicted Trump on both. Neither case ever reached trial, partly because Trump won the 2024 election and walked back into the White House before a jury could hear a word.
The Pattern Is the Point
NPR frames this as "yet another step in a campaign by the Trump administration and its allies in Congress to pursue people who once investigated Trump." That framing is generous in its restraint. This is a retribution operation with congressional letterhead.
The Justice Department has already moved to initiate criminal cases against former FBI Director Jim Comey and New York Attorney General Letitia James, both of whom crossed Trump's path professionally and have been paying for it ever since. Smith is the latest name on a list that keeps getting longer. Trump himself posted "Justice at last???" on social media Thursday morning, reacting to news of the referral with the enthusiasm of someone who has been waiting for this specifically.
Smith's lawyers called the referral "a chilling eagerness to weaponize the justice system by attacking a career, nonpartisan public servant who faithfully and fearlessly performed his duties by following the facts and the law." That's lawyer-speak for: this is political persecution dressed up in a subpoena.
A Referral Is Not a Conviction, But That's Kind of the Point
To be direct about what a criminal referral actually is: it's a letter. Congress sends DOJ a strongly worded request and DOJ decides whether to act on it. Raskin is probably right that a judge would not take this particular theory seriously. But the referral doesn't have to result in a conviction to do damage. The goal of announcing an investigation, dragging someone through media coverage, forcing them to hire lawyers and respond to inquiries, and making their name synonymous with legal jeopardy -- that goal gets accomplished regardless of whether charges ever materialize.
This is how you discourage future prosecutors from going anywhere near a president with subpoenas. You don't have to win in court. You just have to make the price of trying high enough that the next Jack Smith thinks twice.
The Dingo Take
Here is the deal. The Republican argument, as reported by NPR, is that Jack Smith lied by not volunteering information they never asked him for. If that standard applied to congressional testimony generally, every witness who has ever sat before a committee without reciting their complete life history unprompted would be a felon. The standard does not exist in law. It exists because Jim Jordan needed something to put in a letter.
What does exist, very clearly, is a systematic effort to punish everyone who had the audacity to enforce the law against the current president before he became the current president again. Comey. James. Now Smith. The Justice Department that was supposed to be independent of political pressure has been turned into a collections agency for personal grudges. And Congress, rather than functioning as any kind of check on that, is actively filing the paperwork.
Smith spent years building cases based on evidence, grand jury testimony, and classified materials. The cases were dropped for political reasons before any jury heard them. Now the people who benefited from those dropped cases want to put Smith in handcuffs for not answering a question they forgot to ask. If you can look at that sequence of events and see anything other than raw, vindictive power being exercised in broad daylight, you are not paying attention.
