MIKE DAVIS: Why criminal referral of Jack Smith was 100% justified
Former Biden administration special counsel Jack Smith is finally facing legal accountability for his abuse of power in his failed effort to defeat President Donald Trump’s candidacy through two sham federal indictments. As part of that process, Smith provided testimony to Congress via deposition, and omitted crucial information necessary for the proper exercise of congressional oversight. House Judiciary Committee Chairman Jim Jordan referred Smith to the Department of Justice for potential prosecution, and Smith should be gravely concerned.
18 U.S.C. § 1001 prohibits making knowingly and willfully false statements during government proceedings. Telling a half-truth is equivalent to making a false statement—a witness cannot omit material information and then claim his testimony was technically accurate. The congressional investigators who deposed Smith warned him of his obligation, consistent with the standard oath all witnesses take: to tell the truth, the whole truth, and nothing but the truth, so help me God.
After President Trump left office, the Biden Justice Department obtained the contents of text messages of 44 Members of Congress, including 20 senators and 24 representatives. Those members included then-House Speaker Kevin McCarthy, the most powerful Republican in government. The government seized those contents while scouring phone records between President Trump, his associates, and members of Congress concerning the profoundly troubling 2020 election.
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During his deposition, Smith asserted that he had sought toll records through search warrants. But toll records only reveal who called whom and when. They do not reveal the contents of conversations. When asked whether he had obtained the contents of communications through a search warrant, Smith explicitly denied that he had done it. What he conveniently neglected to mention was that he had obtained the contents of those texts through the National Archives. One of Smith’s henchmen, Thomas Windom, obtained the contents of the communications without properly subjecting them to review by a “taint team” to ensure that Smith did not receive communications privileged under the Speech and Debate Clause of the Constitution.
Smith and his defenders audaciously argue that he should not be expected to read the minds of his questioners. He answered that he did not receive the texts through a search warrant, and that is all he was required to say, the Smith sycophants claim. This argument makes a mockery of the “whole truth” portion of the oath. Smith obtained the texts through a separate improper channel that Congress–through the dedicated work of Senate Judiciary Committee Chairman Chuck Grassley–uncovered just last month. That information incontrovertibly would have been essential to congressional oversight. Congress must know that the National Archives provided Smith with the contents of congressional texts, and that Smith improperly reviewed them.
Smith and his supporters also claim this referral is part of a retaliatory prosecution scheme against him, citing President Trump’s repeated calls for Smith to be held accountable. Those calls are eminently reasonable, as Smith tried to put Trump in prison for the rest of his life for exercising his First Amendment right to dispute a dubious election. Smith sought to cannibalize the Executive Branch by running roughshod over presidential immunity, a principle the Supreme Court thankfully affirmed in 2024. Requesting that the Justice Department investigate a purported crime is not retaliatory; it is consistent with the rule of law.
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Some also argue that prosecuting Smith would threaten the institutional independence of the Justice Department. But the Justice Department is not independent; it is part of the Executive Branch and therefore under the control of the president. Second, Smith, while a private citizen, allegedly committed a crime. It is inconceivable how holding him legally accountable for that conduct would threaten the Justice Department. Third, with respect to alleged crimes that Smith allegedly committed while serving as a special counsel, such as conspiracy against constitutional rights under 18 U.S.C. § 241, it is proper to hold prosecutors criminally liable for unlawful conduct in the same way it is proper to hold law enforcement officers accountable. If a police officer unlawfully beats a suspect without cause and violates his civil rights, that officer should face legal accountability. Holding him accountable is not a threat to law enforcement; it is consistent with the rule of law. The same applies to rogue prosecutors like Smith.
Jack Smith is an affront to the federal government and the legal profession. He tried and failed to alter the outcome of the 2024 presidential election by prosecuting President Trump across two jurisdictions on two absurd indictments. He then withheld material information—meaning, he lied—during a congressional deposition. This information came to light only thanks to Chairman Chuck Grassley. Smith’s best hope now is to try a Clintonian “depends on the meaning of ‘is’” defense, and let a dozen jurors decide whether they will swallow it.
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