On Wednesday, House Judiciary Chair Jim Jordan sent a criminal referral to the Department of Justice accusing former Special Counsel Jack Smith of perjuring himself in testimony before the committee.
“While testifying under oath, Mr. Smith seemingly made willfully and intentionally false statements of material fact that contradict new documents obtained by the Committee from the Department of Justice (DOJ),” he fulminated. “The Committee is providing this information for the DOJ to investigate a potential violation of 18 U.S.C. § 1001.”
What were those statements?
Well, see, they asked him “Did you seek a search warrant for the content of any text messages from Members?” And he said he’d only sought toll records. Then they asked him “Did the records that you requested, the toll records from the Member of Congress, include the content of text messages?” And he said, “No.”
But! Later Smith did get some of that message content from the National Archives when it handed over communications captured on White House employees’ devices. And …
Now, perhaps you are wondering how statements that are literally true can be perjury. But Jim Jordan has an answer for that … plus a lot of very puzzling footnotes.
First of all: “The Committee advised Mr. Smith that he was obliged to provide all necessary information that would make his responses truthful and to avoid half-truths or incomplete answers.” In support of which, Jordan cites to a 1953 Supreme Court case called Lutwak v. US that involved sham green card marriages. Lutwak does not involve a perjury charge, which is probably why no page is cited, although the opinion does contain some helpful language about a statement which “did, and was intended to, carry with it implications of a state of facts which were not in fact true.”
Second, Jordan argues that “Under relevant federal statutes, a witness makes a false statement when the witness provides a half-truth or excludes information necessary to make statements accurate.” This has a footnote referring the reader to 18 U.S.C. § 1001 … which says nothing of the kind.
“A half-truth includes selectively providing information while affirmatively representing that the disclosed information is complete,” he continues, pointing to U.S. v. Blackley, 167 F.3d 543 (D.C. Cir. 1999). Which is indeed a § 1001 case with a page cite. Yay! But if you go to page 551 of the opinion, you’ll find that the court was actually saying that it was irrelevant whether the trial judge botched the instruction on concealment as a secondary theory of liability because the defendant had affirmatively lied his ass off. Womp womp.
There are several other such cites in Jordan’s letter, along with five footnotes citing § 1001 for the proposition that it’s perjury to let the tribunal walk away from the interrogation with a mis-impression. But none of those are the seminal Supreme Court perjury case Bronston v. US, in which the justices stated unequivocally that truthful answers in response to ambiguous questions are not perjury:
A perjury prosecution is not, in our adversary system, the primary safeguard against errant testimony; given the incongruity of an unresponsive answer, it is the questioner’s burden to frame his interrogation acutely to elicit the precise information he seeks.
[…]
A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner.
It’s almost like some eager legislative aide fired up an LLM and asked it to find any cases referring to a duty to disclose, and then slapped them in there willy-nilly with no concern about the real legal standard.
Smith’s lawyers, Peter Koski and Lanny Breuer, are discreet enough not to point out that the computer ate the Committee’s homework. Instead they simply note that the referral “relies on the unprecedented theory that Mr. Smith provided false testimony not because of what he said, but because of what he did not say.”
No normal DOJ would charge someone with perjury for answering a question truthfully, but failing to volunteer information that was never solicited. But this is the Justice Department that tried to pin a § 1001 charge on Jim Comey for his truthful answers to Ted Cruz, and, when that fell apart, arrested him for posting seashells on Instagram. So Todd Blanche is almost certainly honing that Jack Smith grand jury presentation as we type.
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
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