Former Trump investigator Jack Smith’s lawyers said his testimony to Congress was “unimpeachably truthful” and that the criminal referral rested on a “dangerous” and “unprecedented theory.”
Jack Smith says Trump broke the law in House testimony
Jack Smith said he stands by his decision to prosecute President Donald Trump.
House Judiciary Committee Chairman Jim Jordan, R–Ohio, called on the Justice Department on July 22 to criminally investigate Jack Smith, a former investigator of President Donald Trump, for allegedly lying to Congress by not providing information about text messages his investigative team obtained.
However, lawyers for Smith fired back the same day in a letter to Jordan and the DOJ and obtained by USA TODAY, saying that Smith’s answers were “unimpeachably truthful,” and that the criminal referral rested on a “dangerous” and “unprecedented theory.”
Jordan’s theory of criminal liability “risks ensnaring every witness who testifies before a congressional committee who does not proactively disclose information that is not responsive to a question asked (i.e., every witness),” Smith’s lawyers, Lanny A. Breuer and Peter Koski, said in their letter.
The Dec. 17 testimony, which occurred behind closed doors, concerned what information Smith’s team gathered as it investigated the Jan. 6, 2021, riot at the U.S. Capitol, where Trump supporters attempted to block then-former Vice President Joe Biden’s 2020 election victory over Trump from being certified.
Smith’s team looked at communications between White House officials and members of Congress as it sought to understand who may have unlawfully attempted to overturn the election results.
Smith secured two indictments against Trump in 2023, one accusing the then-former president of illegally retaining classified documents after his first term in office, and another alleging that Trump illegally plotted to overturn his defeat in the 2020 election. Smith dropped both cases after Trump won the 2024 election, citing a DOJ policy against prosecuting a sitting president.
What did Smith say in his testimony?
Asked during the Dec. 17 deposition, which occurred before Smith testified publicly at a committee hearing in January, whether he sought a search warrant for the content of congressional text messages, Smith testified that he didn’t recall doing that.
Under further questioning, Smith confirmed he sought data such as the date and time of phone communications by representatives. Smith was then asked whether those requested records included the content of phone calls or texts, and he said they didn’t.
Jordan alleged in his letter that Smith’s answers amounted to a criminal lie to Congress because Smith didn’t disclose that his office separately received some content of congressional representatives’ texts when it received phone records from White house personnel, which included texts between those personnel and certain members of Congress.
“(Smith’s) conduct can only be understood as an effort to thwart the Committee’s inquiry by intentionally making false statements and representations before Congress,” Jordan wrote in his letter.
Jordan said a false statement can include “a half-truth,” and that even a statement with some truthful information “becomes affirmatively false when it represents that the partial information is complete.”
Jordan’s committee has been investigating whether Smith’s team violated the Constitution’s Speech or Debate Clause by obtaining information from members of Congress. The clause protects representatives from being “questioned in any other Place” for “any Speech or Debate in either House” of Congress.
“No one is above the law, and that includes Jack Smith,” Stefanie Farrell, a House Judiciary Committee spokesperson, said in a statement shared with USA TODAY. “Statements he made before the Committee are contradicted by the evidence and impeded the Committee’s inquiry of the Biden-Harris Administration’s weaponized Justice Department.”
The DOJ didn’t immediately respond to USA TODAY’s request for comment on whether it’s investigating Smith and for its response to critics who say the referral is politically motivated.
DOJ has repeatedly investigated, prosecuted Trump targets
The Justice Department has repeatedly sought to investigate various individuals who have investigated or criticized the president, including people Trump has specifically called to face prosecution.
After Trump posted on social media Sept. 20 that former FBI Director James Comey and New York Attorney General Letitia James should be criminally charged, the department secured indictments from grand juries against both Trump rivals. A judge dismissed both indictments Nov. 24, ruling that the prosecutor who secured the charges, a former personal lawyer to Trump, wasn’t lawfully appointed.
Since then, the DOJ has secured a new indictment against Comey, this time alleging he threatened to harm or kill Trump when he posted an image of seashells reading “8647” on Instagram in May 2025. “86” is a slang term that means “to throw out” or “to get rid of,” according to Merriam-Webster. Trump is the 47th U.S. president.
Some Trump supporters interpreted the post as a threat against the president. Within hours, Comey deleted the post and said in a new post that he “didn’t realize some folks associate those numbers with violence.” He said he took the original post down because he opposes “violence of any kind.”
The Trump administration previously opened a separate investigation into whether Smith’s prosecutions of Trump violated the Hatch Act, which prohibits federal employees from engaging in political activity. Lawyers for Smith have called that investigation “baseless,” and said Smith followed the example set by a special prosecutor who investigated President Richard Nixon in the 1970s.
Smith’s lawyers said in their July 22 letter to Jordan that he agreed to testify before the House Judiciary Committee while knowing Trump’s DOJ might try to find something to charge him with because he is a target of Trump’s.
“That is not the rule of law. And it contravenes the principles that are critical to the vitality of our democracy,” they write.
