New documents first obtained by the Daily Caller suggest former special counsel Jack Smith may have misled lawmakers and the public regarding the pretext for his investigation into President Donald Trump’s retention of classified documents.
The documents reveal the National Archives’ internal watchdog did not consider its February 2022 message to the Justice Department (DOJ) about Trump’s possession of classified documents a criminal referral, contradicting Smith’s account of how the case began. The National Archives and Records Administration (NARA) Office of Inspector General (OIG) case report from February 2022, obtained by Senate Judiciary Committee Chairman Chuck Grassley, notes that its message to the Justice Department was a referral, but not a criminal referral.
Smith had previously claimed in court filings that the investigation was “[p]rompted by NARA’s discovery of classified documents in the 15 boxes in January 2022 and a criminal referral from NARA in February 2022.”
“The OIG determined that this matter and the other relevant matters be classified as -R (referral to DOJ for their assessment and guidance, not the same as a criminal referral for prosecution which is only done for criminal investigations),” the report first made in 2022 and edited throughout 2023 to include such information notes.
FBI messages included in the documents show that the bureau first treated the missing documents complaint as a “spillage” issue with “little likelihood of being pursued as a criminal matter.”
“Here is the official PIN response to us after we had that meeting with them last week which we briefed you on. FBI and AUSA Jay Bratt (DOJ-NSD) are handling matter 1 and according to the FBI (who I spoke to last late last week) matter 1 is being handled as a ‘spillage’ which sounded like there is little likelihood of being pursued as a criminal matter,” a NARA official sent to the DOJ in February 2022 about Trump’s possession of classified documents.
“Thank you for the email, Waleska and Jason. I appreciated you taking the time to discuss these matters in more detail in our virtual meeting this afternoon,” another email from the DOJ to FBI and NARA officials read.
“Based on the allegations as set forth below and as supplemented by our virtual meeting, Matters 1, 2, and 3 are not matters for which PIN would open a criminal investigation at this time. If you develop additional evidence related to these allegations, especially as to the contents of the underlying documents or any evidence,” it continued about the potential case.
Grassley is was expected to reveal these documents during his committee’s hearing on Tuesday with Smith.
The documents also reveal separate NARA communications showing the agency’s general counsel, Gary Stern, made substantive edits to DOJ court filings in the case, even though Smith’s office told the court NARA played no role in “prosecutorial strategy.”
Smith secured two indictments charging Trump for alleged interference in the 2020 election and for alleged mishandling of classified documents. Despite his best efforts to secure a trial before the election, Smith was forced to drop both cases after the now-president won the presidential election in 2024.
In June 2023, Smith’s office received a massive trove from NARA: 54 spreadsheets of text messages from inside Trump’s orbit obtained from the White House custodian.
After obtaining the documents, senior attorney Thomas Windom was eavesdropping on the conversations between Trump and his top advisors in his first administration, including former Chief of Staff Mark Meadows, former Director of National Intelligence John Ratcliffe, former Deputy Chief of Staff Dan Scavino, first daughter Ivanka Trump, Vice President Mike Pence, and many others. It appears the review was done without first separating potentially privileged information.
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