The House Judiciary Committee is considering a criminal referral of former special counsel Jack Smith to the Justice Department, Chairman Jim Jordan, R-Ohio, said Wednesday, citing allegations that Smith misled lawmakers during congressional testimony about his investigation into President Donald Trump.
Jordan told Fox News' «Hannity» that the committee is examining whether Smith's statements under oath about obtaining telephone toll records from members of Congress were false. «We're already looking at that,» Jordan said. «Do we need to refer him to the Justice Department, to Attorney General Blanche, for them to go ahead and move forward with prosecution? We're looking at that as we speak.»
The potential referral stems from Smith's December testimony before the House Judiciary Committee. During that hearing, Smith stated that his office sought only telephone toll records — which include call numbers, times, and durations — and not the content of communications. When asked whether investigators had obtained text messages from members of Congress, Smith replied, «No, I don't recall,» and confirmed that only toll records were sought.
However, newly disclosed information suggests otherwise. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, announced Tuesday that records provided to his committee showed Smith's team obtained and reviewed text messages involving 44 current and former lawmakers as part of the Trump election probe. The list includes both Republicans and Democrats, though some Democrats were also affected.
Jordan argued that the disclosure contradicts Smith's sworn testimony. «They got my phone logs,» Jordan said. «There were 44 members of the United States Congress — members, senators, members of the House. Even some Democrats, a handful of Democrats, were caught up in this. Again, you can't do that.» He accused Smith's team of obtaining the information without a warrant and failing to screen it properly. «Jack Smith, under oath, says, 'No, no. We didn't get any contents.' Well, shazam, it looks like they did, and it looks like he wasn't square with us when he testified in front of our committee,» Jordan added.
The issue gained further attention during acting Attorney General Todd Blanche's confirmation hearing Wednesday, when Sen. John Kennedy, R-La., pressed the Justice Department over the allegations. Kennedy noted that Grassley's announcement had revealed the scope of Smith's review of lawmakers' communications. Blanche confirmed that the DOJ is investigating the matter.
Sen. Josh Hawley, R-Mo., also weighed in, calling for Smith to be prosecuted. «What did he do with the text messages? We don't know that yet. What we do know is he absolutely read them. He absolutely shared them with members of his team and all of that illegally,» Hawley alleged on «Hannity.» He added that Smith «lied, he violated the law, he violated the Constitution. This guy ought to be prosecuted.»
Smith's testimony had previously drawn scrutiny from Republican lawmakers who questioned the scope of his investigation into Trump's efforts to overturn the 2020 election results. The former special counsel was appointed by Attorney General Merrick Garland in 2022 and led two federal cases against Trump, both of which were dismissed after Trump's 2024 election victory. Smith resigned from the Justice Department in January 2025.
Representatives for Smith did not immediately respond to requests for comment. The potential criminal referral would be a nonbinding recommendation to the Justice Department, which would decide whether to pursue charges. Such referrals have been used by Congress in the past to signal concerns about potential misconduct, though they rarely lead to prosecution.
The development adds to ongoing tensions between the Republican-led House and the Justice Department over investigations related to Trump. Jordan's committee has been probing what Republicans describe as the «weaponization» of federal law enforcement agencies, including the FBI and DOJ, during the Biden administration. The committee has also sought records and testimony from former officials involved in investigations of Trump.
Grassley's office released a list of the 44 lawmakers whose text messages were obtained by Smith's team, though the specific content of those messages has not been publicly disclosed. Jordan said his own phone logs were among those obtained, and he criticized the lack of a warrant for the data collection. «They went to another branch of government and got it,» he said. «They got it, and they didn't screen it.»
The controversy underscores the broader debate over the limits of prosecutorial authority and the separation of powers. Legal experts note that obtaining lawmakers' communications without a warrant could raise constitutional concerns, particularly under the Speech or Debate Clause, which protects members of Congress from certain forms of inquiry related to legislative activities.
As the House Judiciary Committee continues its review, Jordan indicated that a decision on whether to pursue a criminal referral could come in the coming weeks. «We're looking at that as we speak,» he reiterated.
