Jack Smith, allies slam DOJ criminal referral
House Judiciary Chairman Jim Jordan, R-Ohio, has issued a criminal referral to the Justice Department seeking the prosecution of former Special Counsel Jack Smith for alleged false statements to Congress last December about the collection of toll records and text message content from more than 40 members of Congress.
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House Judiciary Chairman Jim Jordan, R-Ohio, is accusing former Special Counsel Jack Smith and the former Biden administration of trying to “sway” the 2024 election with the Department of Justice (DOJ) probe into President Donald Trump and his allies.
Jordan’s committee is releasing a new 57-page report arguing that Smith and his team “ran roughshod over key constitutional protections,” and that the former Democratic White House used “the DOJ as a weapon against its political opponents.”
“The Special Counsel’s prosecutors tried to silence President Trump with unlawful gag orders, threatened defense attorneys, mishandled key documents, and broke protocol to release a massive trove of alleged evidence just weeks before the presidential election to sway public opinion,” the report said.
As many as 44 members of Congress in both the House and Senate had the contents of their text messages gathered by Smith’s team, Republicans have said.
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Former U.S. Special Counsel Jack Smith testifies before the House Judiciary Committee about his investigations into President Donald Trump in the Rayburn House Office Building on Capitol Hill in Washington, D.C., Jan. 22, 2026. (Saul Loeb/AFP via Getty Images)
Jordan’s report accused the prosecutors of willfully skirting legal processes to get that information in a bid to hide their intelligence gathering.
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“Internal documents show that Arctic Frost investigators, and later Smith’s team, had only limited, perfunctory discussions with subject-matter experts in DOJ’s Public Integrity Section (PIN) about the constitutionality of these seizures,” the report said. “Although PIN cautioned that the subpoenas could be unconstitutional, PIN approved them nonetheless, asserting there was little ‘litigation risk’ because the gag orders that accompanied the subpoenas would prevent Members from ever discovering the seizures. As a result, Members of Congress were unaware of the Biden-Harris DOJ’s spying for more than two years.”
The report said investigators in the probe, colloquially known as “Arctic Frost,” sought Jordan’s own phone records from the period between August 2020 and January 2021 in relation to the federal probe into Rep. Scott Perry, R-Pa.
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PIN said lawmakers’ constitutional protections under the Speech or Debate Clause did not apply “because the subpoena targeted his personal cell phone accounts, and because the subpoenas were served to a third party,” i.e., Jordan’s phone carrier rather than Jordan himself. An email excerpt showed PIN Deputy Chief Jennifer Clarke noted there was a “litigation risk” with the argument but “approved the subpoenas nonetheless,” the report said.
A separate email excerpt in the report showed another PIN official, John Keller, also said there was a “litigation risk” in obtaining members of Congress’ toll records but noted it would be “minimal” due to the low likelihood of those lawmakers facing federal charges.
Rep. Jim Jordan, R-Ohio, leaves the U.S. Capitol on June 11, 2026. (Tom Williams/CQ-Roll Call, Inc. via Getty Images)
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Keller’s email also noted the government had a “potentially meritorious argument that the calls over the relevant period — especially unsolicited incoming calls — would not constitute protected legislative acts.”
The report also alleged that the DOJ ran afoul of its own rules by improperly using an independent watchdog office to serve Jordan’s phone carrier when it significantly expanded what information it needed about him.
“On May 1, the DOJ issued a subpoena for Chairman Jordan’s phone records from January 1, 2020, to April 25, 2022—every call incoming and outgoing for more than two years.43 A Special Agent from the DOJ Office of the Inspector General (OIG)—an entity that should be independent of the DOJ and maintain a reporting relationship with Congress as it investigates waste, fraud, and abuse—served the subpoena to Chairman Jordan’s phone carrier,” the report said.
OIG Special Agent Brian Burnett testified to the committee that the investigation as a whole was “unique” within his three decades of law enforcement experience in that he was following orders from an assistant U.S. attorney rather than investigating himself, the report alleged.
“A normal investigation would be, I would do the investigation, become familiar with everything, you know, do grand jury subpoenas, do the normal investigative process, follow the normal investigative steps. But, in this case, those steps were given to us by the prosecution team,” an excerpt from Burnett’s testimony showed.
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Then-Attorney General Merrick Garland takes questions from reporters during a news conference at the Department of Justice Building in Washington, D.C., on May 23, 2024. (Kent Nishimura/Getty Images)
Jordan’s report also noted that Smith’s team backed down from grand jury subpoenas sent to AT&T for two other lawmakers’ phone records after the phone carrier questioned their legal basis.
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“In May 2023, Special Counsel Smith sent AT&T a grand jury subpoena that included a request for phone records associated with AT&T accounts for two other members of Congress. However, when AT&T raised questions with … Special Counsel Smith’s office concerning the legal basis for seeking records of members of Congress, the Special Counsel did not pursue the subpoena further, and no records were produced,” a letter highlighted in the report said.
Smith testified to congressional investigators that he did not “have any recollection of that,” the report said.
The report goes as far as to say Smith “admitted privately” to then-Attorney General Merrick Garland that lawmakers “likely have a valid Speech or Debate privilege immunizing them from compelled testimony,” but that Garland still gave his “blessing” to Smith for subpoenas “compelling the production of Members’ protected legislative records.”
Jordan reaffirmed past GOP-led probes’ conclusions that prosecutors improperly bypassed a DOJ “filter team” process to obtain the 44 lawmakers’ and Trump officials’ records. Of those 44 lawmakers, two were Democrats.
In the report’s conclusion, Jordan urged the House of Representatives to take up legislation led by Rep. Mike Kelly, R-Pa., barring any government entity from obtaining records — whether by subpoena, court order, warrant, or otherwise — that is likely to implicate the Speech or Debate Clause.
The bill, the Congressional Records Protection Act, advanced through the House Judiciary Committee but has so far not gotten a House floor vote.
Jordan argued it would not just protect members of Congress but the people they serve, too.
“The Speech or Debate Clause protects not only legislators, but American citizens too. It guarantees that the people’s representatives in Congress may advocate effectively on their constituents’ behalf without the threat of interference or intimidation by the Executive Branch,” the report argued.
Smith has so far stood by his team’s findings and maintained his innocence amid a barrage of GOP attacks.
In his testimony to Republicans, he laid blame on Trump for prosecutors collecting GOP lawmakers’ records.
“I think who should be accountable for this is Donald Trump. These records are people, in the case of the Senators, Donald Trump directed his co-conspirators to call these people to further delay the proceedings. He chose to do that. If Donald Trump had chosen to call a number of Democratic Senators, we would have gotten toll records for Democratic Senators. So responsibility for why these records, why we collected them…that lies with Donald Trump,” Smith said in a report excerpt.
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Fox News Digital reached out to Jack Smith’s law firm, Heaphy, Smith, Harbach & Windom, for comment.