Will Jim Jordan Be Indicted by Jack Smith? What We Know

Jim Jordan is moving closer to becoming House speaker, even as a former federal prosecutor said that Jordan is "an accessory after the fact" to former President Donald Trump's alleged election-rigging attempts.

Several legal experts told Newsweek that prosecutors would have to show that Jordan's claims about the 2020 election were part of a wider conspiracy.

On Thursday, House Majority Leader Steve Scalise withdrew from the House race. That has put Jordan in a very strong position to take the role, even as controversy about his role in the 2020 election continues to amplify.

U.S. Rep. Jim Jordan speaks to reporters as he walks at the U.S. Capitol on October 12, 2023 in Washington, DC. The politician is moving closer to taking the House speaker position, even as controversy about his role in the 2020 election continues to amplify. (Photo by Joe Raedle/Getty Images)

Several legal experts told Newsweek that Jordan may claim he was simply exercising his free-speech rights under the constitution's First Amendment.

Peter Shane, adjunct professor of law at New York University, said that the First Amendment does not cover all intentionally false statements. "Laws against fraud, perjury, and defamation, for example, are not unconstitutional," he added.

However, Shane said that the first amendment may protect Jordan if he was simply raising questions within the political arena.

"The first amendment would make it difficult to uphold a prosecution of Jordan based solely on his speech unless it could be shown to be part and parcel of some larger criminal act," Shane added.

That larger criminal act led prosecutors to use Trump's words against him when indicting him for his 2020 presidential election claims.

"If it could be shown that Jordan was part of a conspiracy to defraud the United States of the sort charged against Trump in his D.C. indictment, and his false statements were made in furtherance of that conspiracy, the First Amendment would not preclude using his statements as evidence," Shane said.

Stephen Gillers, an NYU School of Law professor, agreed that Jordan may be shielded by the First Amendment's robust protection of political speech.

"Politicians lie. Surprise! These comments, even if knowingly false, are protected speech. The only way they can possibly be criminal is if Jordan had joined a conspiracy to commit a crime, and his speech was intended to further the criminal objectives of that conspiracy," Gillers said.

With so many people around Trump now indicted, "Smith has to be careful not to overplay his hand and lose credibility with the public and the courts," Gillers added.

Newsweek sought email comment from Jim Jordan and Jack Smith's office.

However, former prosecutor Glenn Kirschner, now an MSNBC legal analyst, told SiriusXM radio host Dean Obeidallah last week that Department of Justice Special Counsel Jack Smith should launch a "scorched earth" investigation into Jordan's role in the election.

Kirschner said only Smith and his team know for sure whether there is enough evidence to charge Jordan.

"I'm quite sure they've been investigating the insurrectionists in Congress... Jack Smith can't turn a blind eye to all of that. So, you know, the other thing that Jim Jordan has absolutely been doing is trying to cover up and prevent Donald Trump from being held accountable for his crimes. In a very real sense, he's been an accessory after the fact to Donald Trump's crimes," he said. The former president has denied any wrongdoing concerning the 2020 election indictment and has repeatedly called Smith's investigation a witch hunt.

Last Monday, CNN's website published its own investigation into Jordan. It said that "in the months leading up to and following the 2020 presidential election, potential House speaker and Ohio Rep. Jim Jordan prolifically pushed false stolen-election rhetoric."

"After then-President Donald Trump lost the election to Joe Biden, Jordan urged Trump not to concede, spread conspiracy theories, supported lawsuits attempting to disqualify the legitimate results and discussed plans to object to the 2020 election results on January 6, 2021," it added.

"In the lead-up to the election, Jordan baselessly suggested numerous times that Democrats were orchestrating a plan to steal the election, implying that COVID-19 rule changes for voting in states were part of a Democratic plot," CNN said.

"Jim Jordan was deeply involved in Donald Trump's antidemocratic efforts to overturn the 2020 presidential election," Thomas Joscelyn, one of the authors of the final report from the House select committee investigating the January 6, 2021 attack at the U.S. Capitol told CNN. "Jordan also helped organize congressional opposition to counting Biden's certified electoral votes. None of Jordan's efforts were rooted in legitimate objections. He simply sought to keep Donald Trump in power, contrary to the will of the American people."