GOP's Jack Smith referral fails to show he committed a crime, ex-prosecutors say

Washington — The Justice Department will face an uphill battle if it tries to prosecute former special counsel Jack Smith over allegations from House Republicans that he made false statements under oath because it lacks any evidence he committed a crime, former prosecutors say.

House Judiciary Committee Chairman Jim Jordan formally referred Smith to the Justice Department for prosecution late Wednesday night, claiming Smith "seemingly made willfully and intentionally false statements of material fact" when he testified during a deposition that he did not seek a search warrant to access text messages from members of Congress.

In his testimony, Smith told the committee his team only sought "toll records" for lawmakers, which are logs that contain data such as the originating phone number; the number called; and the date, time and length of the call. Toll records do not contain the content of calls or text messages.

Republicans say Smith deceived them by failing to disclose that his team obtained access to some text messages from 44 members of Congress, most of whom were Republicans. Prosecutors on Smith's team obtained the records after asking the National Archives to turn over cellphone data for White House personnel as part of a separate documents request.

The problem with Republicans' claim, however, is that Smith was only questioned about the toll records or a search warrant specifically targeting lawmakers' texts — and not about whether he gained access to any text messages from members of Congress through other means, experts told CBS News. And in his responses, he answered the questions truthfully, they said.

"This referral letter is an embarrassment," said Kyle Freeny, a former federal prosecutor who now works for the Washington Litigation Group.

"This is just a case of a mismatch between what they claim they wanted to know, and what they actually asked," Freeny said. "If they have bad questions, they do not get the answers that they want. It's almost like deposition 101."

In his referral letter to the Justice Department, Jordan accused Smith of possibly violating 18 USC 1001, which makes it a crime to "knowingly and willfully" make false, fictitious or fraudulent statements to the federal government.

One common defense against such a criminal charge is the legal principle known as "literal truth," which 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 the literal question truthfully, it's not a false statement just because the questioner meant