Former Special Counsel Jack Smith is facing a criminal referral after new documents suggest his team accessed privileged communications during the Trump investigations, raising questions about testimony he gave to Congress and prompting Republican leaders to push for accountability.

Jack Smith led high-profile probes into President Trump that touched on efforts to overturn the 2020 election and the handling of classified documents, and those investigations consumed significant DOJ resources. The inquiries ended when Trump returned to power, and now Republicans in Congress are scrutinizing how Smith conducted parts of those probes. Lawmakers say new records undercut Smith’s sworn statements and suggest the investigative team may have overstepped legal boundaries.

Senate oversight turned up a dramatic detail: Smith’s investigators obtained text messages tied to dozens of members of Congress and began reviewing them before the office filter team appears to have done its work. That discovery centers on texts from phones associated with the White House around the transfer of power in 2020 and includes messages sent to and from legislators. Republicans argue this sequence of actions ignored safeguards meant to protect privileged communications and legislative activity.

Special Counsel Jack Smith’s investigative team obtained and reviewed text messages from 44 Members of Congress as part of the Biden Department of Justice’s (DOJ) criminal investigation into President Trump. Evidence shows the investigators bypassed a required Filter Team review process, violating investigative protocols and potentially infringing on constitutional guardrails.

The bombshell discovery comes in new records released today by Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Senate Permanent Subcommittee on Investigations Chairman Ron Johnson (R-Wis.) as part of their ongoing Arctic Frost oversight. Grassley and Johnson requested the records from DOJ after receiving legally protected whistleblower disclosures.

The Justice Department’s letter to the chairmen and the provided records indicate Smith’s investigative team circumvented its own filter review process, which was established to protect privileged materials from being swept up in a criminal prosecution, and directly accessed the content of texts sent by Republican and Democrat senators and members of the House of Representatives to White House officials during Trump’s first term. Communications from Members of Congress pertaining to their official legislative duties are protected from criminal prosecution under the Constitution’s Speech or Debate Clause. Bypassing a Filter Team evades consideration of additional privileges, such as attorney-client privilege.

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In June 2023, the Special Counsel’s Office (SCO) subpoenaed the National Archives and Records Administration (NARA) to provide all text messages from October 2020 through January 20, 2021, from phones associated with a long list of personnel serving in the White House during President Trump’s first term, including Trump himself as well as: Mark Meadows, Dan Scavino, Ivanka Trump, Stephen Miller, Peter Navarro, John Ratcliffe, Kash Patel, Rudy Giuliani, Kellyanne Conway and Mike Pence.

NARA provided the texts to SCO on August 21, 2023. Within half an hour, one of Smith’s senior lawyers, Thomas Windom, downloaded the texts and, within one hour, other members of Smith’s investigative team downloaded and began reviewing the texts. It appears the review was done without waiting for the Filter Team to evaluate and segregate privileged information.

The constitutional concern is real: contacts tied to legislative duties fall under the Speech or Debate Clause, and filter teams exist to prevent privileged material from being treated like ordinary evidence. If investigators sidestep that process, they risk trampling key protections built into our system to separate political fights from criminal probes. That is precisely why Republican lawmakers are demanding answers and pressing the Justice Department to consider criminal referrals.

During deposition to the House Judiciary Committee, Smith gave answers that suggested neither he nor his team had accessed the content of members’ texts, and those statements are central to the latest referral from Rep. Jim Jordan. House Republicans argue the new records contradict Smith’s testimony and may amount to false statements under oath. The move ups the pressure on the DOJ to decide whether a referral should be treated as an actual criminal matter.

House Judiciary Chair Jim Jordan (R-Ohio) referred former Special Counsel Jack Smith to the Justice Department on Wednesday, alleging he knowingly made false statements during congressional testimony last year.

Why it matters: The referral escalates House Republicans’ efforts to scrutinize the former special counsel who prosecuted President Trump, even though the Justice Department is not required to act on congressional criminal referrals.

Driving the news: “Smith seemingly made willfully and intentionally false statements of material fact that contradict new documents obtained by the Committee from the Department of Justice,” Jordan said in a referral to acting Attorney General Todd Blanche.

“The responses provided by Mr. Smith gave the impression that neither Mr. Smith nor his team had access to the content of members’ privileged text messages,” said Jordan, referring to members of Congress.

“We now know this to be false,” he added.

“This information calls into question the completeness and accuracy of statements that Mr. Smith made under oath to the Committee regarding his team’s access to the content of Members’ text messages.”

The referral lands on acting Attorney General Todd Blanche, who will decide what, if anything, to do with the allegation that Smith lied under oath. Republicans insist the matter deserves serious examination, noting the broader context of aggressive prosecutions that often targeted political opponents. Smith acknowledged at one point that a future administration might pursue charges, which underscores the partisan risks when justice looks like politics.

At stake is more than one prosecutor’s fate: it’s about restoring confidence that rules and privileges matter equally to everyone, no matter their politics. Congress has the responsibility to follow the records where they lead, and the Justice Department now faces the test of whether it will treat this referral as anything more than another partisan volley. The coming decisions will shape how future special counsels approach sensitive material tied to lawmakers and whether filter protections remain real safeguards.