Jack Smith Returns to Capitol Hill, Facing GOP Claims He Misled Congress on Trump Probe

Today’s Focus

Former special counsel Jack Smith testified Tuesday morning before the Senate Judiciary Committee, defending the two federal prosecutions he brought against President Donald Trump before both cases were dropped after Trump’s 2024 election victory.

The hearing began at 9 a.m. Eastern and marked Smith’s first public congressional appearance since leaving the Justice Department, according to PBS NewsHour. Smith was expected to stand by the charges he filed over Trump’s efforts to overturn the 2020 election and his handling of classified documents at Mar-a-Lago, The Hill reported.

The session followed a July criminal referral from Rep. Jim Jordan (R-Ohio), chairman of the House Judiciary Committee. Jordan asked the Justice Department to consider prosecuting Smith for what Jordan described as false statements during closed-door testimony in December.

At issue is an exchange over subpoenas Smith’s team issued for the toll records of several Republican lawmakers during the 2020 election investigation. Toll records show the time, date, duration and numbers involved in a call, but not the content.

Asked whether the records included call content, Smith answered no, according to a transcript cited by PBS. He gave the same answer about text message content. Jordan contends that answer was misleading in light of what the subpoenas actually sought.

Smith’s attorneys have rejected the accusation and said he testified truthfully. The Justice Department, now led by Trump appointees, has not publicly indicated whether it will act on Jordan’s referral.

Senate Judiciary Chairman Chuck Grassley (R-Iowa) invited Smith to appear voluntarily. Sen. Dick Durbin (D-Ill.), the panel’s ranking member, has defended Smith’s work and called the referral politically motivated.

The Debate

Supporters argue

Republicans on the Judiciary Committee say the hearing is a legitimate oversight exercise into a prosecution they view as politically driven from the start. Jordan, in his July referral letter, argued that Smith’s December answers about the scope of his subpoenas cannot be squared with documents later obtained by House investigators.

Grassley has said the Senate needs a full accounting of how Smith’s office obtained records tied to sitting members of Congress, an area Republicans argue implicates the Speech or Debate Clause. He has framed the hearing as part of a broader review of what he calls the “weaponization” of federal law enforcement against Trump.

Conservative legal commentators, including former federal prosecutor Andrew McCarthy writing in National Review, have argued that Smith’s aggressive use of grand jury subpoenas against lawmakers deserves scrutiny regardless of whether charges follow. Trump himself has repeatedly called Smith “deranged” and demanded accountability for the prosecutions, which Trump maintains were coordinated with the Biden White House, a claim the Biden Justice Department denied.

Critics argue

Democrats and Smith’s legal team say the referral is retaliation for prosecuting a sitting president and lacks a factual basis. Smith’s attorneys, Peter Koski and Michael Dreeben, said in a statement cited by PBS that Smith answered questions “truthfully and accurately” and that Jordan’s reading of the December transcript distorts what was asked.

Durbin has said the hearing sets a dangerous precedent by pulling a career prosecutor before Congress to relitigate charging decisions a grand jury endorsed. He argued that toll records are a standard investigative tool and that Smith’s team followed Justice Department procedures for obtaining records touching on members of Congress.

Norm Eisen, a former Obama White House ethics lawyer, told MSNBC the referral appears designed to intimidate prosecutors from taking future politically sensitive cases. Protect Democracy, a nonpartisan legal group, has said prosecuting Smith over a disputed transcript reading would fit a pattern of using the Justice Department against Trump’s perceived adversaries.

What the experts say

Legal scholars say criminal referrals from Congress are common and rarely result in charges. A 2019 Congressional Research Service report found that of dozens of contempt and false-statement referrals sent to the Justice Department over the past several decades, only a small minority have led to prosecution, and outcomes have depended heavily on which party controls the executive branch.

Jack Goldsmith, a Harvard Law professor and former head of the Justice Department’s Office of Legal Counsel under President George W. Bush, has written on his Lawfare blog that Smith’s prosecutions raised genuinely novel legal questions but were within the bounds of prosecutorial discretion. Goldsmith has also warned that reciprocal investigations of former prosecutors risk destabilizing the department’s independence.

On the underlying subpoena question, Georgetown Law professor Paul Rothstein told The Washington Post that toll records are routinely obtained in federal investigations and generally do not implicate the Speech or Debate Clause, though subpoenas involving sitting lawmakers face heightened internal DOJ review.

By the Numbers

2: federal indictments Smith brought against Trump, one over the 2020 election and one over classified documents, both dismissed after Trump’s 2024 win, according to PBS NewsHour.

9 a.m. EDT: scheduled start time for Tuesday’s Senate Judiciary hearing, per PBS NewsHour.

December 2024: month of Smith’s closed-door House testimony that is now the subject of Jordan’s referral, according to The Hill.

July 2026: when Jordan formally referred Smith to the Justice Department for possible prosecution, per PBS NewsHour.

0: dollar amount of content, according to Smith, that the toll records subpoenas sought to obtain from Republican lawmakers’ communications.

165 pages: length of Smith’s final report on the election interference case, released by the Justice Department in January 2025, per Reuters coverage at the time.