Whoever—That’s the literal “legal definition” of perjury as it applies to anyone who testifies at a Congressional hearing. There are three parts (oath, tribunal, stating something the testifies knows not to be true), but what sets perjury apart from lying under oath, or mere misrepresentation, is that word “material.”
(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true
The question of a perjury charge against Jack Smith for his testimony in the House or the Senate, turns on the question of materiality. What is “material” to the Congress members is that their phone records were used as material in a criminal investigation. But that isn’t necessarily material to a court.
Besides, Smith answered the questions put to him by House members, and didn’t answer the questions they didn’t ask. One of the Senators tried to make much of this, as if Smith’s failure to offer information was tantamount to “willfully and contrary to such oath [stating] …any material matter which he does not believe to be true.” Smith said what he believed to be true, in answer to the questions he was asked. He didn’t say no records of the content of the calls were retrieved in the investigation. But he wasn’t asked if they were. If the House Committee had wanted an answer to that question, they could have asked it.
So the perjury accusation there is almost over before it’s started. If the DOJ takes it up, it will be another loser for them. It will be interesting to find out if they are tired of losing.
Okay, then there’s Schmitt’s perjury trap. He actually accused Smith of perjury for saying he’d (Smith) not been to a basketball game in Atlanta in February, 2024. But even if he had been, what if Schmitt had presented his “evidence,” and Smith had said: “Oh, that basketball game!” Would his prior confusion have been perjury? Nope. Would it even have been a misrepresentation? Nope. If Smith had intended to mislead, he wouldn’t say, “Oh, I forgot.” That’s very poor evidence of intent to mislead. Put more in line with the law, Smith didn’t try to state a matter which he knew not to be true. And besides: was the matter material?
Schmitt tried to get Smith to deny he was in Atlanta so Schmitt could prove Smith had met with Fani Wallis. And if he had? What then?
Except Smith didn’t meet with Wallis, and denied being in Atlanta. And how would it be material if he had stopped over in Atlanta on the way to Florida? Or attended the Hawks game that night? Would it prove he met with Wallis?
Without that proof, is Smith being in Atlanta in February, 2024, material? To what? There’s a large gap between a text message, and a material issue. Smith being in Atlanta doesn’t prove Smith met with Wallis. Absent that proof, Smith is not testifying on a material issue. So maybe perjury could have been established. But not because Smith didn’t remember being in Atlanta; which is all he testified to. And Schmitt never presented any evidence that Smith had met with Wallis. So Smith’s testimony was not willfully contrary to the truth. And then he realized he was at a basketball game that day; in Maryland. So in fact it never could have been a perjury case. Schmitt never had that, even on the evidence he thought he had. He could never prove materiality; and he could never prove Smith lied.
Schmitt simply never knew what he was doing, or what he was talking about.
