Former special counsel Jack Smith is not a criminal

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, wrote Elie Honig in New York Magazine.

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.

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 the 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 Ábrego García on that basis. And the cases against James and Comey likely would have 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.

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