House Judiciary Committee Chairman Rep. Jim Jordan (R-Ohio) has referred former special counsel Jack Smith to the Department of Justice for a potential perjury indictment — a move that former FBI official Andrew McCabe says has no legal merit. Smith, who led the federal prosecutions against Donald Trump over classified documents and efforts to overturn the 2020 election, saw both cases dropped following Trump's November victory, consistent with longstanding Justice Department policy against indicting a sitting president.

Speaking on CNN Thursday morning, McCabe told host John Berman that the referral stems from Smith having complied with the very rules established by Trump's own Justice Department.

The Toll Records Dispute

The controversy centers on Smith's testimony regarding subpoenaed toll records. Those records contain metadata — dates, times, and durations — of phone calls made to President Donald Trump on January 6, 2021, during the attack on the U.S. Capitol by his supporters. The toll records do not capture call content.

When asked whether text messages were included in the toll records, Smith answered correctly that they were not. A separate set of records obtained from the National Archives does contain text messages, but those are not classified as toll records. Jordan's grievance, according to McCabe, is that Smith provided only direct "yes" or "no" responses and did not volunteer supplementary information.

Jordan's Letter Concedes No False Statement

Smith's attorneys, Peter Koski and Lanny Breuer, issued a statement emphasizing that even Jordan's own referral letter acknowledges that Smith did not make a false statement.

"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," Koski and Breuer said.

The referral is the latest in a series of oversight actions Jordan has taken targeting prosecutors and FBI personnel involved in investigations of Trump, part of a broader Republican effort to challenge the legitimacy of those probes.

McCabe: Charges Require Explicit Evidence

When asked whether Smith's answers constituted a crime, McCabe was dismissive.

"Not even close, John. Not even close," McCabe told Berman. "This is the sort of referral that in any other Department of Justice would be politely ignored because on its face, it's legally insufficient. You know, perjury charges, false statement charges have to be explicit. There can be no question whatsoever about what the question required and exactly what information the person testifying provided."

McCabe argued that the Judiciary Committee's own phrasing — using terms like "seeming misrepresentation" and suggesting Smith "kind of maybe" misled them — falls far short of the legal standard.

"'Seeming misrepresentation.' 'Kind of maybe have 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."

DOJ Restrictions on Smith's Testimony

McCabe further noted that Smith was constrained by Justice Department guidelines governing what he could disclose.

"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.

He added 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."

Recusal Questions for Acting Attorney General

McCabe also raised the issue of Acting Attorney General Todd Blanche, who previously served as Trump's personal lawyer on matters related to Smith's investigations. Under standard conflict-of-interest rules, Blanche would be required to recuse himself from any involvement in the case.

"In this Department of Justice, I doubt it," McCabe said. "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."

McCabe described Blanche as being in a "permanent application process" — "one bad decision away from being cast out of his current role."

McCabe: DOJ Operating as Instrument of Retaliation

McCabe revealed that he has already been subpoenaed in one of the DOJ's retaliatory cases and offered a stark warning about cooperating with the current department.

"The message you should take away from this is do not cooperate with the government," McCabe said. "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."