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# Jack Smith Says He Won't Be Silenced. The Machinery for Silencing Him Is Already Running.
- URL: https://askablackman.me/jack-smith-says-he-wont-be-silenced-the-machinery-for-silencing-him-is-already-running/
- Published: 2026-09-29T16:40:20.000Z
- Updated: 2026-09-29T16:40:20.000Z
- Description: The former special counsel defended his Trump prosecutions before a hostile Senate panel that has already moved from oversight to criminal referral. The Comey case shows where this road leads.
- Author: Free Game News
- Tags: Politics

Jack Smith walked into Room 216 of the Hart Senate Office Building on Tuesday knowing exactly what the room was for. The hearing was titled "Oversight of Jack Smith's Abuse of Authority and the Targeting of Republicans and Related Matters," which tells you the verdict was drafted before the witness was sworn in. Smith came anyway, voluntarily, and he did not come to apologize.

"I will not be silenced by the continued threats of prosecution from the president or others," the former special counsel told the Senate Judiciary Committee. He said he stood by his decision to charge Donald Trump in the since-dismissed election interference and classified documents cases, that his investigation had developed proof beyond a reasonable doubt, and that he would bring the same case against a president of either party. He called the president's campaign against his former staff a "vilification of the agents, prosecutors and staff who served on my team," most of whom have since been fired or pushed out of the Justice Department.

Republicans came with their own evidence, and this is the part of the story that resists the easy telling. Chairman Chuck Grassley of Iowa used his opening to argue that Smith's election case "ultimately wasn't just about Trump. It was about partisan agents and prosecutors mapping out the Republican apparatus." Grassley has spent a year releasing records from the investigation, known inside DOJ as Arctic Frost, and the documents are not nothing. According to material released by Grassley's office and a House Judiciary report published last week, Smith's team obtained phone toll records for sitting members of Congress under secrecy orders that prevented the members from ever challenging the subpoenas in court, and accessed text messages of 44 members of Congress from both parties. Grassley's committee says Smith's office subpoenaed records tied to more than 400 Republican targets, including donors and journalists' communications with government officials.

The House report's most damaging exhibit is internal: an email chain in which a Justice Department Public Integrity Section lawyer flagged case law suggesting the toll record subpoenas were unconstitutional, then approved them anyway, partly on the logic that nondisclosure orders meant members would never get to court to object. If a Republican special counsel had secretly subpoenaed the phone records of Democratic senators on that reasoning, the senators praising Smith on Tuesday would be quoting the Founders by lunchtime.

Smith's defense, laid out in his December deposition, is that the Public Integrity Section approved the subpoenas, that the lawmakers were not targets, and that the records existed because of Trump's own conduct. "Donald Trump directed his co-conspirators to call these people to further delay the proceedings," he testified. "If Donald Trump had chosen to call a number of Democratic Senators, we would have gotten toll records for Democratic Senators." He has consistently said his team sought toll records, meaning call logs and metadata, and that "toll records do not include the content of calls."

That last sentence is now the hinge the whole fight swings on. In July, House Judiciary Chairman Jim Jordan sent a criminal referral to acting Attorney General Todd Blanche, arguing that newly released records contradict Smith's deposition answers and that Smith made "intentionally false statements designed to obstruct the Committee's oversight." Smith's defenders note his answers were specifically about toll record subpoenas, not text messages, and call the referral a distortion. On Tuesday, Senator Eric Schmitt of Missouri went further in open session, accusing Smith of perjury in an exchange Reuters described as arising from apparent confusion over a reference to Smith attending a basketball game in February 2024\. A dispute over a basketball game is now part of the public record of a potential false statements case. That should tell you something about how the record is being built.

Because that is what Tuesday was really for. Oversight hearings are supposed to end in reports. This one arrived with a criminal referral already pending. And the man holding that referral has already been asked, on the record, what he plans to do with it. At Blanche's confirmation hearing in July, Senator Josh Hawley of Missouri told him, "I think he absolutely should be prosecuted if at all possible," and added, "I hope that you will investigate Jack Smith for perjury, and I hope that possibly you'll prosecute him." Blanche's answer was three words: "Yes, Senator."

The country has already watched this movie, and it knows the plot holes. Last September the Justice Department indicted former FBI Director James Comey and New York Attorney General Letitia James, two of the president's most prominent perceived enemies. In November, a federal judge threw out both indictments after finding that the prosecutor who brought them, Lindsey Halligan, had been unlawfully appointed, a ruling Reuters described as an extraordinary rebuke of the administration's practice of installing loyalists in prosecutor posts without Senate confirmation. The dismissals came without prejudice, and in December the department confirmed in a court filing that it may prosecute Comey again. Comey has pleaded not guilty and says the whole thing is a vindictive prosecution. The machinery did not stop when a judge inspected it. It got recalibrated.

For roughly half a century after Watergate, incoming administrations mostly resisted the temptation to prosecute the people who had investigated them. The restraint was never about mercy. It was about math: everyone in Washington understood the precedent cuts in both directions, and that the party holding the prosecutor's pen today will be the defendant's table tomorrow. That restraint is gone, and both parties helped spend it. Republicans can fairly point to a special counsel who secretly swept up lawmakers' phone records with a legal theory his own department flagged as risky. Democrats can fairly point to a president who demands prosecutions of his enemies by name and a Justice Department that has started delivering them. Each side now treats the other's escalation as a license for its own, which is precisely how norms die: not in one dramatic blow, but in a ratchet of retaliations, each one justified by the last.

Smith ended his opening with a warning that doubles as a description of the room he was sitting in. "History teaches that the rule of law is rarely destroyed all at once," he said. "It's often weakened by attacks on the institutions and the public servants sworn to uphold it." Grassley would say those attacks began with Smith. Smith would say they are ending with him. What neither side said out loud is the part ordinary Americans should sit with: the question in Washington is no longer whether prosecutorial power gets weaponized, only whose turn it is to aim it.

## Free Game Takeaway

Watch three concrete signals in the coming weeks. First, whether acting Attorney General Todd Blanche's Justice Department acts on Jim Jordan's July criminal referral of Smith, either by opening an investigation, appointing a prosecutor, or quietly letting it sit. The referral has been pending for two months, and Blanche told Senator Hawley under oath that he takes the perjury allegations seriously. Second, watch who handles any case against Smith and how they got the job. The Comey and Letitia James indictments collapsed because a judge found prosecutor Lindsey Halligan was unlawfully appointed, so any new prosecution built the same way invites the same result. Third, watch for any Republican senator who breaks ranks on the subpoena tactics or any Democrat who admits the secret phone record subpoenas went too far. Silence on both flanks means the retaliation cycle is locked in. The deeper lesson for ordinary readers: the civil liberties principle and the anti-retribution principle are the same principle. A government that can secretly subpoena its opponents' records, or prosecute yesterday's prosecutors, will eventually do both to people with far less power and fewer lawyers than Jack Smith. If you cheered either tactic when your side used it, you helped build the tool that gets used on you next.