House Judiciary Committee chairman, Rep. Jim Jordan (R-Ohio), is going after former special counsel Jack Smith, but a former FBI official needled the Republican for being angry that he followed their rules.
Speaking to CNN on Thursday morning, former FBI official Andy McCabe was asked about the recent referral of Smith for indictment, noting that even Jordan doesn't seem to be confident in his accusations.
At issue is Smith's request for the subpoenaed toll records. The records show details about those who called President Donald Trump on Jan. 6 during the attacks on the U.S. Capitol by his supporters. The records do not record what was discussed, however. Only the date, time and length of the call are included.
Smith was asked about whether text messages were in those toll records, and he answered correctly that they were not. There's a second set of records he got from the National Archives that has text messages, but those aren't toll records. The question specifically asked about the toll records.
What Jordan has a problem with is that Smith answered each question with simple "yes" or "no" answers and didn't volunteer any additional information. So, while Jordan has referred Smith to the DOJ for a perjury indictment, there's a low likelihood that the case will make it past preliminary court hearings.
Smith's attorneys said that even Jordan indicates that Smith didn't commit perjury in his letter.
“The referral is made not because Mr. Smith made a false statement — the letter concedes he did not — but because he did not proactively disclose information that was not responsive to a question asked,” said Smith's lawyers Peter Koski and Lanny Breuer in a statement.
McCabe was asked whether what Smith answered constituted a crime.
"Not even close, John. Noteven close," said McCabe to CNN host John Berman. "This is the sort ofreferral that in any other Department of Justice would bepolitely ignored because on itsface, it's legally insufficient.You know, perjury charges,false statement charges have tobe explicit. There can be noquestion whatsoever about whatthe question required andexactly what information the person testifyingprovided."
What the Judiciary Committee asked and how Smith answered isn't enough to accuse him of lying, said McCabe.
"'Seemingmisrepresentation.' 'Kind of maybehave suggested' doesn't cut it. 'We asked him this, but he didn't say enough,' doesn't cut it," McCabe continued. "It has to be a direct answer to a direct question. That is clearly not the case here."
The other challenge for Jordan's referral for indictment is that Smith was restricted by the Justice Department in what he could say to begin with.
"Jack Smith, first of all, was not only not under any obligation to provide information beyond the scope of what was asked in the question. He was actually prohibited from doing so because he was under very strict rules from the Department of Justice that he could not go beyond a certain point and volunteer information that is currently under seal," McCabe explained.
The ex-FBI official said that Smith "had to be laser-careful about the answers that he gave. He gave an answer that was responsive to the question asked. No foul."
Another point McCabe made is that, as Trump's former personal lawyer on matters pertaining to Smith's investigations, Acting Attorney General Todd Blanche would be required to recuse himself from being involved in any way in the allegations.
"In this Department of Justice, I doubt it. If he recuses here or if he presides over the determination not to investigate Jack Smith, I would say his time in that office would be limited. And he knows that better than anyone," said McCabe. He also claimed that Blanche is in a "permanent application process" and "he's one bad decision away from being cast out of his current role."
McCabe also revealed that he has already been subpoenaed in one of the DOJ's retaliatory cases. The lesson he wants folks to take from this is to avoid the current DOJ at all costs. If you speak to them, you do so at your own peril, he implied.
"The message you should take away from this is do not cooperate with the government," he warned. "Do not provide answers under oath. Do not provide answers to Congress. Do not provide answers to questions to agents or to a grand jury, because this Department of Justice will take what you say and apparently what you don't say and try to use that against you all in pursuit of the president's revenge mission that against you all in pursuit of the president's revenge mission."