The committee chair, Jim Jordan, an Ohio Republican, wrote to the acting US attorney general, Todd Blanche, on Wednesday night, asserting Smith “made willfully and intentionally false statements of material fact” during testimony about obtaining phone records of a number of Republican lawmakers.
Smith, Jordan claimed in the letter, falsely told the panel that his team had no access to privileged text messages when he testified in December that they had only “toll records” containing numbers, not content.
US justice department documents presented to the panel on 14 July, Jordan said, showed that Smith’s investigators actually had access to the text messages of 44 members of Congress.
“Based on this new information, there is cause for investigation to determine whether Mr Smith knowingly made false statements to obstruct the Committee’s oversight,” Jordan wrote.
Smith’s lawyers Lanny Breuer and Peter Koski, in their own letter to Blanche, said their client “provided truthful, responsive answers” during closed-doors questioning by the panel in December, and again during an open session in January.
“This referral reflects a chilling eagerness to weaponize the justice system by attacking a career, nonpartisan public servant who faithfully and fearlessly performed his duties by following the facts and the law,” they wrote.
“Mr Smith agreed to testify before the House Judiciary Committee fully cognizant of the risk that President Trump’s Justice Department would try to find something in his testimony to serve as the basis for a criminal charge.
“This risk existed not because Mr Smith would make a false statement, but because President Trump has repeatedly ordered that Mr Smith be prosecuted and jailed.”
Democratic members of the judiciary committee, meanwhile, called Jordan’s letter “a laughably weak and vindictive criminal referral” pandering to Trump’s frequent demands for retribution against the special prosecutor who investigated him.
The Maryland Democrat Jamie Raskin, the panel’s ranking member, issued a lengthy statement saying Smith gave “clear and consistent” testimony, and that his statement about obtaining subpoenas for lawmakers’ toll records “was true when he said it, and it is true today”.
Raskin wrote: “This referral deliberately distorts and misstates the facts, including what questions the Republicans actually asked at Mr Smith’s interview.
“The Republicans fault Mr Smith for not reading the minds of congressional investigators and for not volunteering information they didn’t ask for. This is absurd. Mr Smith may be telegenic but he is not telepathic.
“Wishing that you had asked different questions while you had the opportunity to examine a witness is not a proper basis for a referral of a witness for criminal prosecution.”
Raskin added: “This referral, if ever brought before a judge, will get laughed out of court. It is meant to create a distraction so Republicans on [the] Senate Judiciary [committee] can feel just a little more comfortable confirming the architect of the Epstein cover-up and lawless Trump slush fund and super pardon, Todd Blanche, to the post of Attorney General.
“We will not fall for this ludicrous distraction. Neither will the American people.”
The US Senate panel is set to vote on Thursday morning whether to advance Blanche’s nomination to fill the role permanently.
Blanche will ultimately decide whether to charge Smith, who led two investigations into Trump’s activities during and at the end of the president’s first term, including the hiding of classified documents at his Florida resort. The cases were dropped after Trump was elected to a second term.
Previous efforts by the justice department to punish Trump’s political enemies have fallen flat. A federal judge in November threw out criminal charges against James Comey, the former FBI director, and Letitia James, New York’s attorney general, both vocal critics of the president.
A justice department spokesperson told CBS News that it had received Jordan’s referral letter and said it “will investigate all evidence of criminal conduct”. %!s()
