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........

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