Whatever one might think of Jack Smith’s performance as a prosecutor – I’ve got criticisms, and reasonable minds can differ – the guy is no criminal.

Sure, Congressional Republicans have worked themselves into a retributive frenzy – We’ve got him now! – while Donald Trump shakes pom-poms behind them; “Justice at last???” the President mused on Truth Social, expectantly. But last week’s criminal referral of Smith to the Justice Department by House Judiciary Committee Chair Jim Jordan is pure sleight of hand. On close inspection, even Jordan doesn’t quite buy into his own carnival barkery on this one.

Jordan alleges that Smith lied when he testified behind closed doors to the Judiciary Committee in December 2025. Smith was asked whether, during his investigation of Trump for 2020 election subversion, he reviewed documents containing the content of text messages sent or received by members of Congress. The key to understanding Jordan’s gambit is that there are two separate batches of documents at issue. We’re going to get a bit technical here, but we need to be precise to see through the bullshit.

The First Batch of Documents: Subpoenaed Toll Records

Smith confirmed that, during his investigation, he used subpoenas to obtain toll records of various Republican members of Congress. Jordan and others have made much of this investigative tactic by Smith, falsely claiming that he “spied” on them. But in fact, the subpoenaed toll records only contain metadata – which phone number contacted which phone number, on what date and time, and how long any conversation lasted – but not the substance of any text messages or calls.

Accordingly, Smith testified at his deposition that he did not see the content of any communications in those specific subpoenaed toll records:

Q. Did the toll records that you requested from the Senators, did they include the content of the phone calls?

A. No.

Q. Did the records that you requested, the toll records from the Member of Congress, include the content of text messages?

A. No.

This is the core testimony that Jordan claims was false or misleading – but in fact Smith’s responses were accurate. Smith did not see the content of phone calls or text messages in the particular batch of records about which he was being questioned. Indeed, those records did not even contain any such content.

The Second Batch of Documents: National Archives Records

The fulcrum of Jordan’s referral letter is his claim that, in July 2026, Congress learned that Smith and his team of prosecutors actually had seen the content of certain text messages sent to or from members of Congress. But those text messages were contained in a separate batch of records that Smith obtained from the National Archives and Records Administration, the repository of White House communications.

And that’s the fatal flaw with Jordan’s allegation that Smith lied: Smith was asked during his deposition only about the first batch of records (the subpoenaed toll records) and not the second batch (the National Archives records). Jordan conflates the two, or pretends to, and it sounds damning when you lump everything together. But the transcript makes clear that Smith responded to questions only about whether he saw the content of text messages in the first batch of documents, not the second.

It’s fair to argue that Smith wasn’t entirely forthcoming in his testimony. He could have answered the questions about whether he saw text messages in the subpoenaed toll records with something like, “No, but I did see them in another separate set of records that we got from the National Archives.” But Smith chose to answer the questions posed to him narrowly – “No” – and truthfully. If the House Judiciary Committee members who questioned Smith were not precise or persistent enough, and failed to ask broader followup questions, that’s on the questioners, not the witness.

Even Jordan seems to recognize this, implicitly. In his referral letter, he faults Smith for “[giving] the impression” that he had never seen any texts from members of Congress, and for offering “half-truths.” But as Jordan surely must know, half-truths do not establish criminal perjury or a false statement. Rather, prosecutors must prove beyond a reasonable doubt that the witness was asked a clear question and intentionally gave an unambiguous false response. If an answer is literally true – as Smith’s surely was – that’s not perjury, even if the witness could have offered up helpful additional context.

It almost goes without saying at this point because it’s become so common, but this is yet another act in Trump’s political payback tour. The list of names is now familiar, and seemingly endless: Letitia James, James Comey, Jerome Powell, Senators Mark Kelly and Elissa Slotkin, E. Jean Carroll,, and pretty much anyone else who has ever glanced sideways at the president. Unsurprisingly, all of these efforts at prosecution have failed thus far.

If the Justice Department does somehow ram a charge against Smith through a grand jury, that case will fail too. Before a trial jury can even consider the fact that Smith did not actually commit perjury, he will have a powerful motion to dismiss based on vindictive prosecution. It’s plain that Trump and his DoJ targeted Smith because of lingering political animus over his prior investigations of Trump. In October 2025, Trump claimed that Smith and others “should be prosecuted for their illegal and highly unethical behavior!” He reiterated his request in January 2026, citing Smith’s “large-scale perjury.” And Trump openly celebrated just moments after news broke of Jordan’s referral of Smith to DoJ.

Trump’s Justice Department has made commonplace the (previously) rarely-invoked doctrine of vindictive prosecution. One federal judge already dismissed the indictment of Kilmar Abrego Garcia on that basis. And the cases against James and Comey likely would’ve gone down the same way, had they not been thrown out first because of other Constitutional infirmities.

But it seems neither Trump nor the leaders of his Justice Department care much about their string of losses. As long as they get the sugar-high of the investigation and (sometimes) the indictment, they don’t seem at all bothered when these cases inevitably crash and burn.

Congress, unsurprisingly, lacks the will to do anything about it; when Acting Attorney General Todd Blanche testified at his confirmation hearing earlier this month, he fended off scores of questions about the $1.776 billion “anti-weaponization” slush fund and the Epstein files, but next to nothing about the abuse of the DoJ’s prosecutorial power to try to imprison the president’s political foes. If Blanche and his Justice Department do charge Smith, they’ll lose – and then they’ll try again, with somebody else.