Senator Josh Hawley used Jack Smith's public testimony before the Senate Judiciary Committee to call his investigation the worst abuse of prosecutorial power in the history of the United States, and said that if it were up to him, he'd charge Smith with perjury. But the records behind Hawley's accusations tell a different story. The 44 lawmakers' texts he's so angry about came from Trump's own White House staff records at the National Archives, not from lawmakers' phones, and a few of those lawmakers were Democrats. Hawley even got the month of Smith's superseding indictment wrong. It was filed in August 2024, not October.

Under a 1973 Supreme Court ruling, a literally true answer isn't perjury, and the job of asking precise questions belongs to the person asking them. Smith was questioned about toll records, and he answered the questions Congress actually asked. A former federal prosecutor called Jim Jordan's criminal referral against him "an embarrassment." Hawley's strongest point is real, since Smith's office never told the judge that the gag orders involved members of Congress. But that isn't the crime Hawley wants charged.

The real danger is who gets to decide. Jordan's referral now sits with a Justice Department run by Todd Blanche, Trump's former defense lawyer, who answered "Yes, senator" in July when Hawley said he hoped the department would investigate Smith. A weak case can still do real damage, because it doesn't have to win to send a message to every prosecutor who investigates this president. Control of Congress is on the ballot November 3, so check your state's voter registration deadline today, and subscribe to follow what happens with the referral.

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