'CHILLING': MS NOW instantly reacts to GOP criminally referring JACK SMITH to DOJ

[0:00] For a year and a half now, we have seen Trump's allies grasp at straws in their attempts to go [0:06] after Trump's perceived enemies. They raided a man's house in the middle of the night, [0:10] publicly accused him of being part of the deep state, and charged him with felony assault, [0:15] all because he threw a subway sandwich at a federal agent. Remember that? I mean, [0:20] that's obviously hardly a deadly weapon. Prosecutors tried to claim that the agent [0:24] could feel the impact of the sandwich through his bulletproof vest. [0:27] They indicted former FBI Director James Comey on charges of threatening the president's life, [0:32] just because Comey posted a photo of seashells on Instagram. They've accused a whole list of [0:37] Trump's perceived enemies of mortgage fraud for doing something multiple of Trump's own [0:42] cabinet members have done themselves, and which Trump has done himself. If it weren't so serious, [0:47] it would all be pretty freaking laughable. And now tonight, Trump's allies are yet again [0:52] grasping at straws. This time, in an attempt to gin up something they could try to use against [0:58] former special counsel Jack Smith. Because tonight, and as I noted, this literally just broke, [1:04] the Republican chairman of the House Judiciary Committee filed a formal criminal referral, [1:08] the letter right here, asking acting Attorney General Todd Blanche to prosecute Jack Smith on the [1:14] very flawed premise that he lied to Congress. That was first reported by Fox News because, [1:20] well, of course it was. But we here at MSNOW have now obtained the referral ourselves, [1:25] and the logic undergirding this referral doesn't actually make much sense. It's weedy and technical [1:31] and confusing, and that might be the point. Because if all you know is that a member of Congress is [1:37] saying Jack Smith lied to them, that certainly sounds bad. But when you look at the details here, [1:43] they don't really seem to add up. And luckily for us, Republican Senator Josh Hawley explained the [1:48] GOP's logic on all this just last week when he was trying to get Blanche to prosecute Jack Smith for [1:54] it. Now, just to show you how ridiculous this all is, how much this is yet again the GOP grasping [2:00] at straws, let me just break down what Holly's argument was. For almost a year now, Republicans [2:05] have been trying to say that Jack Smith broke the law by obtaining the phone records of members of [2:09] Congress while he was investigating January 6th. In reality, all Smith did was subpoena what are known [2:16] as toll records, which are essentially logs showing when calls were made, but not their content. It's [2:23] kind of like your phone bill, just shows who you called and when. We've talked about this, by the [2:28] way, on this show before, because this is so absurd. So he subpoenaed the toll records of lawmakers who [2:33] interacted with Trump around the time of January 6th, 2021, because wouldn't you want to know that [2:39] information if you're overseeing an investigation? But he couldn't see what they were saying in those [2:44] communications. He just knew who called who went. Now, Republicans are trying to conflate those [2:49] subpoenaed toll records of members of Congress with this, because last week, Republican Senator Chuck [2:54] Grassley released documents showing that Jack Smith's January 6th investigation had also obtained text [3:00] messages from 44 lawmakers. Republicans have been trying to act like that is a huge scandal. But here's [3:08] the thing. Smith obtained those texts because he asked the National Archives for records from the White [3:14] House from around the time of January 6th. Again, if you're investigating this, wouldn't you want to [3:19] have those? And it turns out a lot of people in the White House were texting with members of [3:24] Congress. So Republicans are trying to conflate the toll records and these texts from the White House [3:29] obtained from the National Archives to try to pretend that Jack Smith lied to Congress, to try to prosecute [3:35] Jack Smith for lying to Congress. And again, here was Senator Hawley last week trying to show what he [3:41] asserted was a moment in which Jack Smith lied. Here is a record. I'm going to read it to you. A record [3:49] of Jack Smith's responses under oath now to members of Congress. He is asked question as it relates to [3:57] members and their staffs and senators. It's just the toll records as far as you remember. Smith, that is my [4:05] recollection. Now, the gotcha that Hawley is going for here is that he is trying to say that Jack Smith lied to [4:13] Congress by saying that the only communications of members of Congress he subpoenaed were the toll [4:17] records. But that is the truth. He didn't subpoena any text messages from any member of Congress. [4:23] He got texts of White House officials from the National Archives. And surprise, surprise, everyone, [4:29] people in the White House text people in Congress. Now, the biggest reach they are making is that they [4:34] are conveniently ignoring the full text of what Jack Smith actually told them in his deposition. [4:39] They are just trying to twist his words so it seems like he is lying when he isn't. I mean, [4:45] here was the section of Jack Smith's deposition that Hawley presented last week like it was some [4:49] sort of a smoking gun. To make it clear as day, we are going to put the actual text of what Jack [4:55] Smith said in his deposition up next to Hawley so you can just see what he left out. Watch as he just [5:01] conveniently skips over the fact that Smith was answering a question specifically just about the [5:07] toll records. Question. Did the records that you requested include the content of text messages? [5:16] Smith answer. No. Now, maybe there's some nuance I'm missing here. Actually, I think there is that [5:27] quite a bit of nuance you are missing there, Senator Hawley. And while Jim Jordan's new criminal [5:31] referral gives the actual full quote of what Smith said, this is still spin. It's still grasping at [5:38] straws. Jordan writes tonight that they believe Smith's answer to Congress were, quote, half truths. [5:43] I'd say that the real half truth appears to be this criminal referral itself. In a statement tonight [5:49] reacting to Jim Jordan's flimsy criminal referral, representatives for former special counsel Jack [5:53] Smith said, quote, the referral is made not because Mr. Smith made a false statement, which the letter [5:58] concedes, but because he did not proactively disclose information that was not responsive to a question [6:04] asked. This referral reflects a chilling eagerness to weaponize the justice system by attacking a career [6:11] nonpartisan public servant who faithfully and fearlessly performed his duties by following the [6:16] facts and the law. Joining me now is MSNOW justice and intelligence correspondent Ken Delaney. And again, [6:22] we just got this letter. Ken's very smart. He's been reading over it. Let me just start by asking you, [6:27] Ken, we tried to do our best summary there. What do you make of what Jordan is alleging in this [6:33] referral? Look, and this is not a partisan statement. I'm a reporter, Jen. This doesn't [6:40] pass the laugh test. This is such a stretching of the facts here. Let me just read you a response [6:46] that I got from Jamie Raskin, the ranking Democrat on the Judiciary Committee. He says, in part, [6:50] this referral, if ever brought by a judge, will get laughed out of court. But success on the merits [6:56] is not the goal. It is meant to harass Jack Smith. It's meant to please their Fox News viewership. [7:01] It's meant to whitewash their own participation in a scheme to overthrow our elections. Look, [7:07] the bottom line is you can't charge somebody for lying because they weren't asked the right [7:12] question. Now, maybe we all wish, maybe Jack Smith wishes that he had amended or added to his [7:18] answer about the toll records. And by the way, I'm not saying that we didn't obtain any text [7:22] messages throughout the investigation relating to members of Congress. And maybe he didn't even [7:26] remember because this was not a significant part of the investigation. As you said, this was a [7:31] subpoena to the National Archives for White House records. And in those White House records were [7:37] contained text messages from members of Congress. And there's a whole procedure that prosecutors have [7:42] to go through when they're figuring out whether they can review any records related to Congress because [7:47] there is a legislative privilege. There's a speech and debate clause. And the Smith team went through [7:52] all of that. Jack Smith talked about that under oath. He said he followed all the Justice Department [7:58] guidelines related to that. And you can argue about whether they went too far, whether they played [8:02] fast and loose. But the idea that Jack Smith intentionally lied under oath based on this set of facts [8:08] is just ridiculous. And Jamie Raskin is right. This will get laughed out of court. Now, the thing we have to [8:14] be concerned about here is we've seen this movie before. The Justice Department has charged James Comey [8:20] with lying in a very similar set of circumstances for statements that don't really track a question [8:27] that was was rather confusing. And so it would not surprise me, actually, if this Justice Department [8:31] ended up charging Jack Smith. But if they do, that will be that will be a ridiculous moment in our [8:38] in American history. Yeah, I wanted to ask you about in terms of kind of what happens here. I mean, [8:42] this to me feels like a big PR play, right? It's you know, they want to get attention. They want to [8:47] throw in some credibility. Jack Smith just did an hour long interview with our colleague Nicole [8:50] Wallace a few weeks ago. Doesn't seem like a coincidence to me. Who knows? I would also know [8:55] that one of the documents that Senator Chuck Grassley released last week showed that Smith's [9:00] team discussing discussing discussing sending the lawmakers text they got from the White House and [9:05] National Archives to Trump's defense attorneys years ago, as in Chuck Grassley released documents [9:10] acknowledging that this wasn't a secret. This was known just like the toll records were known [9:14] because they were literally in the report that was released by Jack Smith. Maybe people didn't [9:18] read the report. But what do you think this is all about? I mean, is it a PR game? Is it more than [9:23] that? Is it trying to take Jack Smith off the board? What is it about? It's certainly a PR game. And it [9:30] certainly is an effort to silence and intimidate Jack Smith. I mean, he's been very clear about the [9:35] pressure that he feels he's under. And the people who work for him have been fired and purged from the [9:40] Justice Department. I just fear that it could be more than that, that we could actually see a [9:45] criminal case arise from this because we've seen that kind of thing before. And this Justice [9:50] Department has proven itself capable of contorting itself to file criminal charges against the [9:57] president's enemies. And there's no greater enemy, let's face it, in Donald Trump's mind than Jack [10:01] Smith, the man who did try to put him in prison. That was Jack Smith's intention. Let's not, you know, [10:06] make no bones about it. He filed very serious criminal charges. And he has said publicly since then that he [10:12] believes Donald Trump was guilty of those charges. He could have proven those charges in court. And [10:16] they likely, they very possibly could have resulted in a prison sentence for Donald Trump. So yeah, [10:21] I mean, I fear that it's more than a PR campaign. And to your earlier point, you're absolutely right. [10:25] Of course, this was disclosed to Donald Trump's lawyers. In discovery, all the relevant documents [10:30] in a criminal investigation have to be turned over to the defense. That's part of our system. So the [10:35] idea that they're just discovering this now, the Republicans, and that it's this grave scandal, [10:40] you know, it just doesn't, it doesn't seem logical. [10:44] And Senator Grassley released some of it. Okay. So, so talk to release some of the correspondence [10:48] about it. Talk to us about what happens next year. What do you, you, you have many stories [10:53] you're covering in this Justice Department, but what are you watching for? What are the things that [10:57] could happen next year? [11:00] Well, we'll watch for signs of a grand jury investigating this matter. And, you know, [11:05] grand juries are secret. So we're reading tea leaves and we may hear from people inside [11:09] the Justice Department who are very concerned about these kinds of political cases. You know, [11:15] we, we, sometimes we learn about these kinds of things from people that are very upset about them. [11:21] And so that's what we'll do. We'll, we'll use, we'll, we'll report it out and we'll look for any [11:26] signs that they are actually conducting a criminal investigation that could result in charges against [11:30] Jack Smith. Jack Smith's lawyers may hear about it. They may be, there may be witnesses brought in, [11:35] uh, that those are the kinds of things that we'll watch for. Uh, because again, this is going on [11:41] all the time. They're all, they're all manner of people that, that came into Donald Trump's [11:47] crosshairs that he views as a political enemy who are being investigated at this moment by the [11:52] Justice Department. [11:53] Kandelanian, thank you as always for your tireless reporting and being able to consume and digest [11:58] things so quickly. We appreciate it. [12:00] We have more now on that breaking news that my colleague Jen Psaki broke last hour. [12:07] House Judiciary Chairman Jim Jordan has issued a criminal referral of former special prosecutor [12:14] Jack Smith, accusing Smith of lying to Congress. In the referral letter obtained by MSNOW, [12:20] Jordan claims that Jack Smith misled Congress about how, quote, [12:25] during the special counsel investigation, investigators unconstitutionally subpoenaed phone records [12:30] for over a dozen Republican members of Congress and obtained gag orders to prevent the members [12:35] from knowing that in May, 2022, investigators in the U.S. Attorney's Office for the District of [12:41] Columbia began seeking subpoenas for members' phone records because these members spoke with certain [12:47] executive branch officials. Of course, those records of communications between Republican members of [12:54] Congress and the Trump White House were part of the federal investigation into the violent attack [12:59] on the Capitol and Donald Trump's attempt to overthrow the results of the 2020 election. [13:05] Tonight, a representative for Jack Smith responded. [13:09] The House Judiciary Committee's referral to the Department of Justice of our client, [13:13] Jack Smith, is based on a spurious claim that Mr. Smith provided false testimony during his eight-hour [13:20] deposition before the House Judiciary Committee. The referral is made not because Mr. Smith made a false [13:26] statement, which the letter concedes, but because he did not proactively disclose information that was [13:33] not responsive to a question asked. During his testimony, Mr. Smith provided truthful, responsive [13:38] answers and candidly discussed his work as special counsel. This referral reflects a chilling eagerness to [13:45] weaponize the justice system by attacking a career nonpartisan public servant who faithfully and [13:52] fearlessly performed his duties by following the facts and the law. Jim Jordan's Democratic counterpart [13:59] on the committee, Congressman Jamie Raskin, was a little less measured in his response tonight, [14:04] saying, quote, this referral, if ever brought before a judge, will get laughed out of court. But success on the [14:11] merits is not the goal. It is meant to harass Jack Smith. It is meant to please their Fox News viewership. [14:17] It is meant to whitewash their own participation in a scheme to overthrow our elections. And above all, [14:24] it is meant to create a distraction. So Republicans on Senate Judiciary can feel just a little more [14:30] comfortable confirming the architect of the Epstein cover-up and a lawless Trump slush fund and super [14:36] pardon, Todd Blanche, to the post of Attorney General. We will not fall for this ludicrous [14:40] distraction. Neither will the American people, unquote. Joining us now to discuss is Congressman James [14:47] Walkinshaw, Democrat of Virginia. He is a member of the House Oversight Committee. So, Congressman, [14:54] your colleague Jamie Raskin says that this referral would be, quote, laughed out of court. Do you agree [14:59] with that assessment? Yeah, I think absolutely. Look, Jack Smith was asked if he obtained text messages [15:07] via toll records, and the answer was no. What Jim Jordan didn't know and should have known is that a lot [15:15] of those text messages exist in the National Archive as part of the presidential record. And Jack Smith [15:20] was able to get access to some of them that way. Jim Jordan didn't ask that question. Shoddy work by [15:26] him in the deposition. But this referral is a joke. And just like many of the other politicized [15:33] prosecutions that Todd Blanche has taken into courtrooms, it's going to get thrown out. [15:38] If Democrats win control of the House, do you think that your committee should investigate [15:45] Congressman Jordan's actions here as an abuse of power? Well, look, Jim Jordan and other [15:51] congressional Republicans were part of Donald Trump's scheme to overturn the results of a free [15:57] and fair election in 2020. Jim Jordan is also one of those Republicans who defied a congressional [16:02] subpoena to answer questions about his role in January 6th and his role in an effort to overturn [16:09] the election. So there needs to be accountability for all of that. Folks involved in that need to [16:15] answer questions about their role and their efforts to overturn a free and fair election. [16:21] Well, so to clarify, does that mean that you think that if Democrats retake the House, [16:26] it is appropriate to launch an investigation of your colleague Jim Jordan for potentially [16:34] abusing his power? What is accountability? [16:36] Yeah, look, I think we will have to investigate the weaponization of the Justice Department under this [16:44] Trump administration. And to the extent that members of Congress are aiding and abetting [16:50] that weaponization, the effort to harass a career public servant like Jack Smith, efforts to harass other [16:58] nonpartisan, nonpolitical public servants who did their job to try to find justice around January 6th and [17:06] other illegal actions by Donald Trump and his administration, all of that will need to be [17:11] investigated. [17:13] You talk about the retribution here from potentially the DOJ and or your colleagues on the other side of [17:20] the aisle in Congress. Do you think it will give pause to future civil servants, [17:26] considering taking up important but divisive independent roles like this or or other important [17:33] roles in law enforcement? I'm thinking about the efforts to persecute slash prosecute people like James [17:42] Comey. What do you think the net effect is on incentives to serve your country, given that this kind of [17:51] fate may be awaiting you? It's such an important question. You know, I represent 50,000 dedicated [17:59] federal employees in my district in Virginia, folks who put the Constitution in their service to the [18:05] American people ahead of loyalty to any politician, whether it's Donald Trump or anyone else. They take [18:11] their patriotism very, very seriously. Clearly, there's an effort to intimidate folks like that. [18:18] They've been fired. They've been pushed out. They've been harassed. They've been referred for [18:22] prosecution. But I have deep and abiding faith in the patriotism of the American people and the [18:30] dedicated public servants who serve across the government in nonpolitical roles. And I'm confident [18:37] that despite this effort to intimidate them, they're going to continue to do their jobs now and into the [18:42] future. Congressman James Walkinshaw, thanks so much for joining us tonight. [18:46] Thanks for having me. It is Wednesday, July the 22nd, 104 days until the midterm elections. And [18:55] tonight, House Republicans are turning up the heat on one of Donald Trump's top perceived political [19:00] enemies. MSNOW has obtained a letter sent by Jim Jordan, the chair of the House Judiciary Committee, [19:06] referring the former special counsel, Jack Smith, to the Justice Department for criminal charges. [19:13] Smith has long been a target of Trump. He served as the special prosecutor, you'll remember, [19:18] who indicted Trump twice back in 2023, including for trying to steal the 2020 election. [19:25] Jordan's letter to the Department of Justice alleges that the House has, quote, strong evidence, [19:30] end quote, that Smith, quote, seemingly made willfully and intentionally false statements of material [19:36] fact that contradict new documents obtained by the committee from the Department of Justice, [19:43] end quote. Okay, this is where it gets interesting even for us non-lawyers. The allegation focuses [19:49] on one particular line of questioning from a closed-door deposition that Jack Smith took part in back in [19:57] December. It involves whether or not Smith sought search warrants for congressional members' text [20:04] messages. Now, during the deposition, Smith said that he did not. He only requested something [20:10] called toll records. Now, toll records, we all have them. They're basically logs of when calls were made. [20:18] They do not show the content of any messages or communications. They're basically a list of phone [20:25] numbers, who you called, and I think how long you talked to them. So here's how the exchange in [20:31] question went. Question. Did you seek a search warrant for the content of any text messages from members? [20:39] Smith. From members? Question. Yes. Smith. No, I don't recall that. Question. Okay. It was just toll [20:48] records. Smith. Correct. Okay. It goes on. Question. Did the toll records that you requested from the [20:55] senators, did they include the content of the phone calls? Smith. No. Question. Did the records that [21:03] you requested, the toll records from members of Congress, include the content of text messages? [21:09] Smith. No. Okay. The discrepancy here, according to Jordan's criminal referral, [21:15] is that the Justice Department produced documents this month that showed that Smith's team did obtain [21:23] text messages from dozens of lawmakers. But we know where those text messages came from, [21:29] and it wasn't because Smith sought search warrants. Those text messages were exchanged between lawmakers [21:37] and the White House. They were preserved as part of Donald Trump's presidential records at the National [21:45] Archives, which is where Smith's team got them from. The Democratic Congressman Jamie Raskin, [21:51] the ranking member on the House Judiciary Committee, said that the referral will be, quote, [21:56] laughed out of court, end quote. Meanwhile, a representative for Jack Smith's team tells MSNOW, [22:02] quote, the House Judiciary Committee's referral to the Department of Justice of our client, Jack [22:08] Smith, is based on a spurious claim that Mr. Smith provided false testimony during his eight-hour [22:15] deposition before the House Judiciary Committee. The referral is made not because Mr. Smith made a false [22:21] statement, which the letter concedes, but because he did not proactively disclose information that was not [22:27] responsive to a question asked. During his testimony, Mr. Smith provided truthful, responsive answers [22:35] and candidly discussed his work as special counsel. This referral reflects a chilling eagerness to [22:41] weaponize the justice system by attacking a career nonpartisan public servant who faithfully [22:48] and fearlessly performed his duties by following the facts and the law, end quote. And that is where [22:56] my legal expertise ends and Barbara McQuaid's begins. So joining us is Barbara McQuaid, the former [23:03] United States attorney for Michigan. She's a law professor at the University of Michigan Law School [23:08] and an MSNOW legal analyst. Adam Mockler joins us as well. He's a digital journalist and a political [23:14] commentator who's built up a following of 2 million subscribers online. And of course, the reason he's [23:19] here is that this is only half a legal story. The rest of it is entirely politics. Thanks to both of [23:25] you for being with us. Barbara, let's start with you. I've read you what I know. Can you tell us what [23:31] that means? Yes, I think there is a real disconnect between what Jack Smith said and what the committee [23:39] is referring to is referring to as a criminal investigation. To prove a claim of false statements [23:45] before Congress, you have to show that a person then and there made a false statement that they [23:50] knew was false. The question is literally true. What he said, did you use a search warrant to obtain [23:58] these records? And he says, no, that's accurate. What Jim Jordan says in his letter is that, well, [24:03] this was deliberately misleading. He answered a question, a literal question, and he answered it [24:08] literally. The documents, as you point out, that Jack Smith ultimately received came from a request [24:15] to the National Archives for White House text messages, and they came in that form. And so it [24:22] does not appear that Jack Smith and his team ever used their own court process to obtain the content of [24:29] messages from members of Congress. It matters that it's literally a true statement. Adam Mockler, [24:37] here's the thing. Donald Trump, you know, we used to, people sometimes loosely call people Donald [24:43] Trump's enemies. Jack Smith's not Donald Trump's enemy. Letitia James is not Donald Trump's enemy. [24:48] He claims that anybody who goes after him on a legal basis is an enemy. He's got perceived enemies. [24:54] In his world, everybody's an enemy. This is not, Jack Smith had two very thorough indictments that were [25:02] not pursued as a result of a Supreme Court decision protecting Donald Trump. But they are determined [25:09] to go after Jack Smith and Letitia James and James Comey and folks like that, largely to put a chill on [25:16] anyone who would criticize Donald Trump or investigate him. Yeah, it seems like the Trump admin is [25:22] desperately trying to pull some sleight of hand to divert people's attention away from the fact that [25:27] Donald Trump lost the 2020 election. He lost it and he cannot cope with that fact. So six years later, [25:33] he's spreading lies about it and he escaped any accountability because Jack Smith's case ended up [25:38] fizzling out after Trump became the president. But Jack Smith had a rock solid case and Donald Trump is [25:44] scared of that. It's funny, Jim Jordan, who sent this request to the DOJ, ended up saying that this [25:52] was a separation of powers issue. I didn't hear any complaining about the separation of powers when [25:56] Trump was directly requesting that the DOJ, that Pam Bondi investigate Adam Schiff or Letitia James. [26:04] I didn't hear any complaining about separation of powers when Trump blew past that 60-day war mark [26:09] and pushed the war powers resolution aside. There was no separation of powers complaining [26:13] when Donald Trump placed tariffs on every single country. He has stepped and squashed all over the [26:19] separation of powers. That wouldn't make it okay for anyone else to do it. But as Barbara pointed [26:23] out, nobody else did that. Jack Smith was just running an investigation into an election that [26:28] Donald Trump tried to steal from the American people. Barbara, it is important where evidence [26:33] comes from, right? Like this is a real thing. Donald Trump, Jack Smith had a way of getting this [26:39] information. And by the way, this is important for all of us to know that one may never get a subpoena [26:44] against you, against Adam Mockler for his text. But if somebody subpoenas somebody who Adam Mockler [26:50] was texting with, they may get their hands on that text. The specificity here matters. [26:57] Jim Jordan is alleging that Jack Smith broke the law. That's very different from Jack Smith using [27:04] other methods to get the information that he was using as part of his attempt to prosecute Donald Trump. [27:10] Absolutely right. Because what they're accusing Jack Smith of here is lying to Congress. And he did [27:17] no such thing. He conceded that he did obtain the toll records of members of Congress. And this is, [27:23] by the way, a routine step that is done in criminal investigations. Figuring out who is talking to whom [27:29] is very important when you're trying to put together a conspiracy case. So the fact that he sought those [27:34] records is in no way improper. In fact, even if he had used search warrants to obtain those records, [27:38] I'm not sure that would have been improper. Nonetheless, because of this respect for separation [27:43] of powers, people use a very delicate hand when looking at these things. Very similar to the way [27:48] they look at press records, only as a last resort. But in this case, they did not seek the content of [27:55] the records of any member of Congress. Instead, what they were looking at is White House records. [28:00] And these members of Congress put themselves out there by reaching out or communicating with the [28:04] White House. They then go on to talk about there was no filter team used here. They waived any [28:09] privilege they might have had by communicating by text message with the White House outside of the [28:15] scope of their congressional teams. Adam Mockler, what's the goal here? Donald Trump's unpopular. [28:22] Every day a new poll comes out and he reaches lower levels of popularity. He's got this war with Iran. [28:28] He's now talking. I mean, it's unbelievable to me. He's talking about tariffs again. [28:33] All the things that Americans don't want, even a lot of his supporters don't want. But boy, [28:38] if you ever crossed Donald Trump, particularly if you were a lawyer or a prosecutor of some sort, [28:44] you are in the crosshairs now, whether it's about mortgages or parking tickets or in this case, [28:50] Jim Jordan's making it sound like a serious matter about perjury, about lying to Congress. [28:55] But in fact, it kind of doesn't matter. If you were involved in investigating Donald Trump from [29:00] being the lowest level FBI agent to being Jack Smith himself, they're coming for you. [29:05] Well, you pointed it out perfectly earlier. He's trying to create a chilling effect. We have seen [29:10] this administration surgically targets any institution that can act as a check on the [29:15] president, even beyond the separation of powers of Congress and the DOJ and the presidency. [29:20] There is the fact that Donald Trump has targeted colleges, law firms, as you pointed out. He's [29:25] attacked media corporations. He's even gone after independent creators. He has this whole website on [29:30] the whitehouse.gov listing off independent creators on YouTube and online who have gone after him. But [29:37] these are just people reporting the news. Donald Trump tries to create an atmosphere of fear around [29:42] anybody who actually wants to act as a democratic check or balance. And I just want to return to this [29:47] fact. Trump lost the 2020 election. He's trying to relitigate it six years later while simultaneously [29:53] try to rig the midterms via gerrymandering and striking down the Voting Rights Act and pushing [29:58] to radically, radically gerrymander. And they're just trying to play sleight of hand. It's like a clever [30:03] way to try to project onto the other side and say, look, the other side is incredibly corrupt. [30:08] Meanwhile, they are the ones trying to pull the wool over our eyes while they rig this next election. [30:13] I will say, though, Barbara, you know, Jack Smith is a, he was a judge and a lawyer. [30:22] James Comey is well-equipped to handle these things. And John Brennan is well-equipped to [30:27] handle these things. And Tish James is well-equipped to handle these things. Sort of, right? I mean, [30:32] these are lawyers. They know other lawyers. If they have to go to federal court, they can find someone. [30:36] The average person can't do that. But the chilling effect is the same, right? The idea is if you go [30:41] after these big, powerful names, the point is we can go after any of you. [30:48] Absolutely right. And although, you know, if Jack Smith were to be charged with a crime for this [30:52] conduct, I have no doubt he would prevail at trial if not getting this case dismissed with a motion. [30:58] But just being charged with a crime is a very burdensome thing for anybody. It puts them through [31:04] the ringer. There is the expense of hiring lawyers. There is the reputational harm of people who [31:10] casually read this and don't pay attention to the details and believe he did something wrong. [31:15] There's the emotional toll on oneself and one's family and the distraction from everyday life or [31:21] one's career. So just being charged alone would be burdensome to anyone, including Jack Smith. [31:26] But I think you're right. You know, it's like when you get into prison, you beat up the biggest guy [31:31] because then everybody's afraid to mess with you. And so if you go after people like [31:35] Jim Comey or Letitia James or Jack Smith, what are the rest of us supposed to do? I think the idea [31:40] is we want to you should keep your head down. You should not speak up. You should not complain. [31:45] You should not criticize the president, because if you do, you could end up just like these other [31:49] people. With the integrity of the Justice Department on the line, let's bring an MSNL legal [31:55] analyst and former clerk to Judge Sonia Sotomayor, Melissa Murray, former federal prosecutor [32:00] Brendan Ballew, who tried January 6th cases, and MSNL senior investigative reporter Carol Lenick. [32:06] I am confused by the timing here, Carol Lenick. Todd Blanche already has a rocky confirmation process. [32:14] Why throw this loyalty test into the mix? [32:17] Well, one of the things that Todd Blanche learned upon being named acting attorney general when Donald [32:28] Trump fired his first choice, Pam Bondi, was that as soon as he fast-tracked weaponized political [32:36] investigations, Donald Trump was pretty excited about nominating him to take the job permanently. [32:42] And so I think for Todd Blanche, having the chance to indict Jack Smith, the former special [32:51] prosecutor who brought two pretty powerful cases against Donald Trump involving classified [32:56] documents and an effort to obstruct and block the certification of the election, the idea [33:04] of pleasing Donald Trump in that way would only further help his standing with the president. [33:12] I don't think there are a lot of members of Congress, actually, that are angry about the [33:19] idea of Jack Smith being tarred and feathered publicly either. It's a different set of questions [33:25] than, for example, what Senator Tillis or Senator Cornyn have asked. [33:31] What's just really shocking here, Alicia, is that Jim Jordan believes there is strong evidence [33:38] that appears to indicate a crime. We all read the English language. We all know what Jack Smith was [33:45] asked, and he answered it accurately. I mean, I wrote a whole chapter of a book about this. [33:50] And his answer about the actual toll records is pristinely correct. [33:56] Brendan, I remember talking to folks on the committee at the time that they were interviewing [34:03] Smith about why Republicans wanted this done behind closed doors. One, because they wanted to suss [34:08] out what Jack Smith was going to say so they could decide what was politically damaging to them [34:13] versus what was politically advantageous. Even Dems would concede that was smart strategy [34:18] at the time, but also because they wanted the possibility of setting traps for him, [34:23] of having testimony that had gaps, that had discrepancies. But in this case, [34:29] do the merits even matter here? Does DOJ go forward with it regardless? [34:34] It's tough to say. You know, obviously, as Carol was saying, you know, [34:37] the acting attorney general has a strong incentive to try to bring an indictment here. It seems crucial [34:42] to his relationship with the president and his advancement professionally. [34:45] But it's a tough case to bring. You know, it's pretty clear that Jack Smith was truthful in [34:50] his testimony. You know, he was asked if the search warrant sought the contents of members [34:56] of Congress's communications and their cell phones. He said that they didn't, and they didn't. [35:01] The fact that these same communications were available in the National Archives, I think as [35:05] Representative Jamie Raskin has pointed out, is frankly something of a embarrassing surprise to [35:11] members of Congress. And so at some level, they might be reacting to their own sort of shock at [35:16] this. You know, it might be possible for the administration to secure an indictment here. [35:21] You know, if you sort of frame this up in enough legalese and, you know, try to sort of obfuscate [35:26] what the question was, maybe they can secure an indictment. But even there, you know, if this is [35:32] brought in the District of Columbia, where it almost certainly would have to be, you know, [35:35] grand juries have been incredibly skeptical of this Department of Justice. So they might even [35:40] struggle there. But even if they did get an indictment, you know, this is, you know, it's [35:45] just so obvious that Jack Smith was telling the truth and answering the question. This might not [35:49] even get to a trial or to a plea because it could just get dismissed on a motion to dismiss. The judge [35:55] could just say on their own initiative that there's not enough evidence to bring a case here. So I think [35:59] it would be, you know, it's possible for them to bring a case. I think it's almost impossible for them [36:03] to win. Right. I mean, Melissa Murray, what we've seen over and over again is that the outcome seems [36:07] sort of secondary to those pursuing these cases. The pain of the process is the whole point. I want [36:12] you to read. I want to read to you just a little bit more of Smith's team's response. They say this [36:17] referral, quote, relies on the unprecedented theory that Mr. Smith provided false testimony, not because [36:22] of what he said, but because of what he did not say. Specifically, the referral argues that by not [36:29] proactively disclosing that the special counsel's office collected from the national [36:33] archives records from White House phones that included text messages, Mr. Smith violated the [36:39] federal false statements statute. That's a lot of legalese there. I want you to unpack it for me. [36:44] My understanding is you have Congressman Jordan saying Smith lied by omission and you have Smith's [36:49] team saying, no, the lawmakers asked the wrong questions. I mean, that's basically it. And in a [36:56] nutshell, you cannot provide a false statement to a question that has not been directly asked in the [37:01] way that Mr. Smith's lawyers are saying. And so he's provided information for the questions that [37:06] were asked and he's done so under oath. And to Carol's point, he answered correctly. And so there's [37:11] that. Can I go back though, and just maybe add a little more legal color to the question of what's [37:17] in it for Todd Blanche? Todd Blanche, who has been auditioning to be the AG for some time now, [37:24] can serve in this capacity under the Federal Vacancies Act, as long as his nomination is [37:31] pending. He has a 210 day service that he could elapse unless the nomination has been brought to [37:37] the Senate. It has been brought to the Senate, which means the timeframe for the Vacancy Act is [37:42] told, which means as long as he is still the nominee and it's pending before the Senate, even if the Senate [37:48] doesn't take it up and vote on it, as long as it's not withdrawn by the president and the Senate [37:53] doesn't vote on it, he can serve indefinitely. The total, the period is told at this point. And so [37:58] that really underscores the point that Todd Blanche is playing and performing for an audience of one. [38:06] And that one audience has one thing in mind and it's retribution. So it's not surprising that this [38:11] was teed up for Todd Blanche. It also, I think, conveniently provides cover for people like Tom Tillis [38:17] and John Cornyn, who have expressed some doubts about Blanche's nomination. This is a huge distraction. [38:24] And if they vote for him, a lot of this may go under the water as we focus on the DOJ prosecuting [38:31] Jack Smith. [38:33] Right. I mean, because, Carol, let's not lose sight of what these records were about. People were [38:38] potentially communicating about how to overturn an election. This wasn't a fishing expedition. [38:44] Absolutely correct. I'm glad you brought up that point, because I remember when Senator Grassley [38:51] sort of famously several months ago, quote unquote, released this amazing explosive information [38:57] suggesting that the toll records, well, first suggesting that members of Congress had been [39:03] spied on because their toll records were sought, which is something that happens multiple times a day [39:08] at the Department of Justice's instruction when they're investigating something and trying to find out [39:13] who called who, when did they call them. You don't learn the content of those phone calls. [39:18] You're just learning, oh, who called who. It happened to be absolutely essential to learn [39:24] who Donald Trump was calling on the day of January 6th, when he was refusing his staff's entreaties, [39:32] including his White House counsel, including several of his deputies, including his chief of staff, [39:38] entreaties for him to do something to stop the violence [39:41] that his supporters were basically executing at the Capitol to try to block the certification [39:48] of a free and fair election. Those phone calls were overwhelmingly to Republicans. [39:53] No shock there. But when this was released by Senator Grassley as some great smoking gun about [40:00] the corruption of special counsel Jack Smith's investigation, nothing could have been furthered [40:05] from the truth. Republicans' toll records were called, were gathered because Donald Trump called [40:12] Republicans. It's not really a surprise. To your point about this not being a surprise, [40:17] Jack Smith has said he thought a prosecution could be coming with or without this referral. [40:23] I want you all to take a listen to him on with Nicole Wallace earlier this month. [40:27] Do you expect to be indicted? Listen, I, Donald Trump has made a bunch of statements about me. [40:35] He said he would indict you, yes. I'll tell you, Nicole, I honestly do not spend a lot of time [40:39] thinking about the things he says about me and his threats about me. I'm real focused on the people [40:47] who I worked with, looking out for them. I'm real focused on how the Justice Department's going [40:51] to be better going forward. Are you afraid to be speaking out? [40:54] No, not at all. I'm not. I am not going to be intimidated. And there's no way in the world if [41:00] the thought was to go after me so that I wouldn't speak up about the corruption that's happening or [41:07] speak up to defend these agents and prosecutors, that is a grave miscalculation. [41:12] Brendan, prosecutors usually try to let the work speak for itself. Is that an option anymore? Do [41:17] people like Smith now have to make the case publicly in this new political reality? [41:21] Well, I certainly hope that they do. You know, Jack Smith carries an enormous amount of credibility, [41:26] both in the public and, you know, among lawyers. So I hope that he uses this opportunity to speak [41:31] out more. And I think it will be obviously a necessity if he in fact gets indicted. I also [41:35] think it's a necessity whether or not he goes in the media that he go on the offensive legally here. [41:41] You know, this would obviously be right for a motion for a selective or vindictive prosecution. [41:47] And the idea that he's being prosecuted because of his beliefs or, you know, his allegiances, [41:53] not because of any crime that he committed. You know, that idea of selective or vindictive [41:58] prosecution is ultimately derived from the constitutional right to equal protection and [42:02] due process. And, you know, his constitutional rights are arguably being violated here. [42:07] I hope that his lawyers think about bringing an offensive case if he is indicted for a constitutional [42:13] violation for which he can get injunction for which he can get damages. And I think that will help shift [42:17] the narrative, too. Melissa, I understand the question I am going to ask maybe sounds naive or [42:23] quaint, but Todd Blanche was Donald Trump's lawyer in the Jack Smith case. Does that require then [42:33] a responsibility to recuse himself from this case at DOJ? [42:38] I think in ordinary times, most lawyers, to be cautious, would, one, surface the association [42:45] with the earlier litigation and then attempt to recuse or to seek advice or counsel about whether [42:52] or not to recuse. But I don't think we are in ordinary times. And I think it's unlikely that Todd [42:58] Blanche is going to do that. We already saw Todd Blanche last week talk about the fact that he was, [43:05] is Donald Trump's personal lawyer? Hard to say. And I think, given the nature of the association [43:12] and the person who has been his client may continue to be his client, I think it's unlikely that we're [43:18] going to see the kinds of steps we ordinarily might see.