House Judiciary Committee Chairman Jim Jordan said Wednesday that lawmakers are actively considering a criminal referral of former special counsel Jack Smith to the Justice Department, after newly disclosed records appear to contradict Smith's sworn testimony about his team's handling of congressional phone data during the Trump election probe.
Jordan made the announcement on Fox News' "Hannity" program on July 16, one day after Senate Judiciary Committee Chairman Chuck Grassley revealed that DOJ records showed Smith's team obtained and reviewed private text messages belonging to 44 current and former members of Congress. Smith had told the House Judiciary Committee under oath in December 2025 that his investigators sought only telephone toll records, not the contents of any communications.
The gap between what Smith said and what the records now show has turned a simmering oversight fight into a potential criminal matter. If the referral moves forward, it would ask Acting Attorney General Todd Blanche, who confirmed during his own Senate confirmation hearing Tuesday that the DOJ is already investigating, to pursue prosecution of the man who once led the federal case against President Trump.
Smith appeared for a closed-door deposition before the House Judiciary Committee on December 17, 2025. Asked whether he had sought a search warrant for text messages from members of Congress, Smith replied: "No, I don't recall." Asked whether investigators had only sought toll records, he answered: "Correct."
He went further in his sworn testimony, as Fox News Digital reported:
"Toll records were sought for historical telephone routing information, collected after calls had taken place, identifying the incoming and outgoing call numbers, the time of the calls and their duration. Toll records do not include the content of calls."
That testimony now sits in direct tension with what Grassley's committee disclosed Tuesday. Records provided to the Senate Judiciary Committee showed Smith's team obtained and reviewed text messages, not merely metadata, involving 44 lawmakers as part of the Trump election probe. Just The News reported that Smith's team bypassed mandatory filter protocols designed to protect privileged communications and began reviewing the texts without waiting for the DOJ's Filter Team evaluation. The texts were reportedly obtained via subpoena to the National Archives for phone records spanning October 2020 to January 20, 2022.
Jordan did not hold back about the discrepancy. "They got it, and they didn't screen it, and then Jack Smith, under oath, says, 'No, no. We didn't get any contents.' Well, shazam, it looks like they did, and it looks like he wasn't square with us when he testified in front of our committee," he said.
Jordan said the surveillance reached across party lines, though it landed overwhelmingly on one side. "There were 44 members of the United States Congress, members, senators, members of the House. Even some Democrats, a handful of Democrats, were caught up in this," he said. "Again, you can't do that... it wasn't just the toll. I never forget the toll records issue."
Jordan himself was among those swept up. "They got my phone logs," he said.
The scope of Smith's data collection had already drawn scrutiny months earlier. A New York Post investigation in October 2025 revealed that a May 2023 grand jury subpoena, concealed under a nondisclosure order signed by Judge Boasberg, compelled Verizon to hand over call logs, addresses, and payment information for at least 10 Republican lawmakers. AT&T, by contrast, refused to comply with a similar subpoena after questioning its legal basis. Senator Grassley's office obtained 197 subpoenas issued by Smith as part of the broader investigation, known internally as Arctic Frost, targeting more than 430 Republican-aligned individuals and organizations.
The use of nondisclosure orders to keep targeted lawmakers in the dark raises its own constitutional questions. National Review detailed how the DOJ's Public Integrity Section provided Smith a "cursory litigation risk assessment" that essentially concluded the Speech or Debate Clause posed minimal concern, because members of Congress would never find out their records had been taken. Jordan read from that assessment during committee proceedings: "Low likelihood that any of the Members listed below would be charged, and the litigation risk would be minimal, not to mention they're not going to know."
Jordan's summary was blunt: "We're not going to charge anyone. We're not going to get sued. They're not going to know. Who cares about Speech or Debate? That's what the assessment looks like to me."
That reasoning, we can ignore constitutional protections because nobody will catch us, is precisely the kind of institutional arrogance that erodes public trust in federal law enforcement. It echoes a broader pattern of politically charged federal surveillance that has dogged the DOJ and FBI for years.
Sen. Josh Hawley, who also appeared on "Hannity" Wednesday, went further than Jordan in his characterization of Smith's conduct. Hawley alleged that Smith did not merely obtain the text messages but reviewed them without legal authority:
"What did he do with the text messages? We don't know that yet. What we do know is he absolutely read them. He absolutely shared them with members of his team and all of that illegally."
Hawley also accused Smith of lying under oath: "Jack Smith said under oath that he didn't seek the text messages of members of Congress, but in fact, we know that he did. So he lied, he violated the law, he violated the Constitution. This guy ought to be prosecuted."
These are allegations from a sitting senator, not adjudicated findings. But they track with the documentary record as disclosed by Grassley's committee, and they carry weight given that the DOJ itself has acknowledged an active investigation.
Rep. Russ Fulcher of Idaho offered a firsthand account that added a visceral dimension to the allegations. Fulcher, one of the 44 lawmakers identified in the DOJ records, told Newsmax that Smith's team directly accessed and wiped his old phone's text messages and contacts while he watched it happen. "They had no right to do it. This is a separation of powers, illegal search," Fulcher said, adding that investigators "simply bypassed" the required filter team process.
Sen. Rand Paul, writing in an earlier Breitbart op-ed, framed the surveillance in Fourth Amendment terms, arguing that the Supreme Court's Carpenter v. United States ruling, which held that geo-location data from cell phone metadata requires a warrant, made Smith's use of grand jury subpoenas for congressional phone records legally indefensible. "If the government is willing to ignore the Fourth Amendment rights of members of Congress," Paul wrote, "imagine what they might do to an ordinary citizen."
Jordan confirmed that the criminal referral has not yet been formally submitted. But his language left little room for ambiguity about the committee's direction:
"Do we need to refer him to the Justice Department, to Attorney General Blanche, for them to go ahead and move forward with prosecution? We're looking at that as we speak."
Acting Attorney General Blanche, who faced questions from Sen. John Kennedy of Louisiana about the Smith allegations during his confirmation hearing on July 15, confirmed that the DOJ is investigating. Kennedy pressed the department on the newly revealed information, though specific details of Blanche's responses beyond the confirmation of an investigation were not disclosed.
Blanche's dual role, as the nominee seeking confirmation and as the official overseeing the very investigation that could result from a congressional referral, places him at the center of what may become the most consequential DOJ accountability case in years. His willingness to pursue transparency and accountability at the department will face a direct test if the referral lands on his desk.
Representatives for Smith did not immediately respond to Fox News Digital's request for comment.
The Speech or Debate Clause exists for a reason older than any living prosecutor's career. Article I, Section 6 of the Constitution protects members of Congress from being questioned in any other place for their legislative acts. The framers understood that a government powerful enough to secretly rifle through lawmakers' private communications is a government capable of intimidating the legislative branch into silence.
Smith's team, by the account now emerging from DOJ records and congressional disclosures, did exactly what that clause was designed to prevent. They obtained private texts from 44 lawmakers. They bypassed the screening process meant to catch exactly this kind of overreach. And when asked about it under oath, Smith told Congress his team had sought only toll records and did not recall seeking text message warrants.
The question of whether those statements constitute perjury is now a legal matter for the DOJ. But the political question is already answered: a special counsel investigating the sitting president's chief political rival swept up the private communications of dozens of legislators from both parties, concealed the collection behind nondisclosure orders, and then, when finally compelled to testify, offered answers that the documentary record appears to flatly contradict.
This is not a minor procedural dispute. The concerns surrounding alleged coordination between federal judges and the Biden-era DOJ on Trump-related probes only deepen the picture of an investigative apparatus that operated with minimal guardrails and maximum secrecy.
And the broader pattern of DOJ accountability failures, from settlement payouts to fired agents to resistance against transparency, suggests that Smith's conduct did not occur in a vacuum. It occurred in an institution that had grown comfortable operating beyond the reach of the people's elected representatives.
Several questions remain unanswered. Which specific lawmakers were among the 44? What did Smith's team do with the text messages after reviewing them? Has the DOJ investigation been formally scoped, and who is leading it? And perhaps most important: will the criminal referral, if submitted, result in charges, or will it join the long list of congressional referrals that disappear into the department's bureaucratic machinery?
Jordan's committee has the documentary ammunition. Blanche has acknowledged the investigation exists. Multiple senators from both the Judiciary Committee and outside it have called for prosecution. The factual predicate, Smith's sworn testimony versus the records now in congressional hands, is specific, documented, and verifiable.
What remains to be seen is whether a Justice Department that spent years letting its own prosecutors operate without oversight is willing to hold one of them accountable when the evidence points back inside the building.
If a former special counsel can secretly harvest the private texts of 44 members of Congress, bypass every safeguard designed to prevent exactly that, and then tell lawmakers under oath it never happened, and face no consequences, then the constitutional separation of powers isn't a principle. It's a suggestion.