House Judiciary Chair Jim Jordan has sent a criminal referral to the Department of Justice accusing former Special Counsel Jack Smith of lying under oath before the committee.
Jordan alleged that Smith made “willfully and intentionally false statements of material fact that contradict new documents obtained by the Committee from the Department of Justice.”
The referral centres on exchanges in which Smith was asked whether he sought a search warrant for the content of text messages from Members of Congress, to which he said he had only sought toll records.
Smith was also asked whether the toll records he requested from a Member of Congress included the content of text messages, and he answered no.
Jordan’s referral argues that these responses, while not explicitly untrue, amounted to perjury through omission and incomplete disclosure.
The referral states: “The Committee is providing this information for the DOJ to investigate a potential violation of 18 U.S.C. § 1001.”
Smith’s lawyers, Peter Koski and Lanny Breuer, have responded by challenging the legal theory underpinning the referral on its fundamental terms.
The lawyers noted that the referral “relies on the unprecedented theory that Mr. Smith provided false testimony not because of what he said, but because of what he did not say.”
Jordan’s referral argues that “the Committee advised Mr. Smith that he was obliged to provide all necessary information that would make his responses truthful and to avoid half-truths or incomplete answers.”
In support of this position, Jordan cited a 1953 Supreme Court case called Lutwak v. US, which involved sham green card marriages and does not itself concern a perjury charge.
The Lutwak opinion does contain language about a statement which “did, and was intended to, carry with it implications of a state of facts which were not in fact true,” though no specific page was cited in the referral.
Jordan also argued that “under relevant federal statutes, a witness makes a false statement when the witness provides a half-truth or excludes information necessary to make statements accurate,” with a footnote pointing to 18 U.S.C. § 1001.
Legal observers have noted that no conventional application of perjury law would support charging a witness for giving a technically truthful answer while failing to volunteer information that was never directly solicited.
The referral nonetheless lands at a Justice Department led by Todd Blanche, raising questions about how seriously the department may treat the submission.