Is Congress Building a Public Case Against Jack Smith Prior to an Indictment?

The former special counsel takes the hot seat next week before the Senate Judiciary Committee over his “abuse of authority” which included obtaining cell phone records of committee members.

Jack Smith, the disgraced and disqualified special counsel appointed by Attorney General Merrick Garland in November 2022, is once again set to testify before Congress next week. This time, Smith will face members of the Senate Judiciary Committee on Tuesday during a hearing on “Smith’s abuse of authority and targeting of Republicans.”

Smith’s testimony coincides with the release of a report by the House Judiciary Committee detailing the rogue, unconstitutional nature of the special counsel’s team—namely, the production of cell phone records belonging to dozens of Republican lawmakers in Washington. At the same time Smith’s team successfully pursued two federal criminal indictments against then-former President Donald Trump in 2023—investigations that had been underway at the Biden Department of Justice since early 2021—prosecutors also sought evidence to tie several top Republican representatives and senators to the president related to the events of January 6 in the so-called “Arctic Frost” inquiry.

By obtaining the cell phone records, “Special Counsel Smith and his deputies ran roughshod over the Constitution’s Speech or Debate Clause, which protects Members’ communications from compelled disclosure,” according to the report.

Subpoenas to cell phone providers were accompanied by non-disclosure orders signed by federal judges that prohibited the companies from notifying those members that the government wanted their data; in some instances, Smith claimed the targets—including newly-elected Speaker of the House Kevin McCarthy—represented a “flight risk,” meaning McCarthy might have fled the country if informed about the subpoena, a preposterous allegation that was nevertheless approved by a court. (This was the same argument initially used by Smith in adding a nondisclosure order to the subpoena for Trump’s Twitter file, as I covered here in 2023.)

Communications between Smith’s top prosecutors appear to confirm what I have suggested for years: the Biden DOJ planned to indict several powerful Republicans related to Jan. 6 if Trump had lost the 2024 presidential election. (In addition to the report, House Judiciary released this week transcribed interviews with a few of Smith’s top henchmen that further exposed the team’s lawlessness.)

The FBI had already snatched Republican Congressman Scott Perry’s cell phone out of his hands while on a family vacation the day after the armed raid of Mar-a-Lago and successfully obtained hundreds of files off his device, which I covered here.

Perry, a former combat pilot during the Iraq war who currently represents a swing district in Pennsylvania, seemed to be at the top of Smith’s hit list. But he was in good company. In addition to McCarthy, Smith’s team was circling former chief of staff Mark Meadows, Rep. Chip Roy (R-Texas), Rudy Giuliani, and John Eastman, who was an unindicted conspirator in Smith’s J6 indictment against the president.

This email from Timothy Duree, Smith’s number three guy at the special counsel’s office, appears to confirm those targets:

One can only imagine what the country would be witnessing right now if Kamala Harris had won the White House. Not only a surefire conviction of Trump on at least two charges in Washington, but one indictment after another handed down against key Republican figures in Congress. Disclosures over the past few years confirming widespread misconduct by Smith’s team—in addition to their total disregard of the Constitutional boundaries between the executive and legislative branch—show the DOJ’s dirty determination in prosecuting not just the president but everyone around him, the Constitution be damned.

And as I have noted for years, and did so recently on X, federal judges were—and would have remained so if the 2024 election turned out differently—all too eager to help.

So, what does this gradual build-up against Smith signal? Hopefully it means that an indictment is forthcoming. In July, House Judiciary Committee Chairman James Jordan sent a criminal referral to the DOJ on Smith for making false statements to Congress. (More from my reporting on the matter here.) Other charges, such as obstruction of Congress or even conspiracy against rights, may be considered as well.

But one thing at this point is safe to assume: Republicans on the Senate Judiciary Committee targeted by Smith, including Senators Lindsey Graham, Marsha Blackburn, and Ted Cruz, will have a field day with their one-time tormentor on Tuesday.

Side note: A motion filed in the dormant classified documents case this week revealed that former FBI employees involved in the Mar-a-Lago raid have received subpoenas to appear before the Florida grand jury hearing evidence in the wide-ranging “conspiracy” case against Trump’s lawfare perpetrators. Prosecutors, according to the filing, expect the former feds to “testify about their work on the classified documents investigation beginning from the date the matter was referred to the FBI, up to and including the execution of the search warrant.” Their attorneys want Judge Aileen Cannon, who dismissed the documents indictment against the president in July 2024 after determining Smith’s appointment violated the Constitution, to clarify whether their testimony violates her order prohibiting any public disclosures of Smith’s report on the documents case. (It does not.)

More to come!