Cut Before the Reveal

On Tuesday the Senate Judiciary Committee spent four hours on a hearing titled, without visible embarrassment, "Oversight of Jack Smith's Abuse of Authority and the Targeting of Republicans." Partway through, Eric Schmitt of Missouri, a former state attorney general who once sued China over the coronavirus, leaned into his microphone and asked the former special counsel a question he had clearly been saving. "Did you go to an NBA game between the Golden State Warriors and the Atlanta Hawks on February 3rd, 2024?" Smith asked what city that would be. Atlanta, the senator said. "No," said Smith.

Fairness first, because the senator had a theory and the theory is not insane on its face. February 2, 2024, is the day Fani Willis and Nathan Wade admitted, in a court filing, to the relationship that would eventually get her thrown off the Georgia case against the President. If the federal prosecutor pursuing the same man had flown to Atlanta the next night, that would be worth asking about. Schmitt asked. "The day before Fani Willis came clean with her affair with the prosecutor," he said, "the next day, were you in Atlanta?" "I do not believe so," said Smith. And then the senator produced his evidence, or rather he gestured at a poster board that Smith said he could not read before staff took it away. "What would you say if I had a series of text messages from your team that said you were in Atlanta at a Warriors-Hawks game on February 3rd, 2024?" He gave the witness what he plainly considered a courtesy. "I don't think you know that we have this stuff. I will give you a second to process so you don't perjure yourself." A moment later he decided the second was up. "I think you've already perjured yourself."

Then Amy Klobuchar made him show the board. The texts, as best anyone has reported them, were from Smith's deputy, J.P. Cooney, on the day in question, asking whether "109 Row 1" was reserved for Jack. No team. No city. No arena. Smith, reading it for the first time, remembered. "If this is the correct basketball game, I recall going to a University of Maryland basketball game where Caitlin Clark was playing right around that time." The Marshals Service was with him, he added, which is the sort of alibi a former special counsel has and the rest of us do not. Klobuchar read the box score into the record. Iowa 93, Maryland 85, February 3, 2024, in College Park, Maryland. Caitlin Clark scored thirty-eight points, hit seven threes, and gave Iowa its first win in College Park since 1992, in front of 17,950 people. Iowa's team is the Hawkeyes. The senator from Missouri had the wrong Hawks, the wrong league, the wrong state, and the wrong sex, and he had used them to accuse a man under oath of a felony. "I think that people should have their facts straight," Klobuchar said, "before they accuse someone of being a dirtbag, and not get the teams wrong." Talking Points Memo later noted that section 109 at Atlanta's arena uses lettered rows and section 109 at Maryland's uses numbers, which means the senator's own exhibit put Smith in College Park.

That was the hearing. It was a bad afternoon for a senator and the paper has seen worse this month. What happened next is the part this paper cares about, because it was not a mistake. A mistake is what Schmitt made. What the people with the cameras and the clips did after was a choice, made with the whole tape in hand.

That afternoon Benny Johnson, who has millions of followers and was fired from BuzzFeed in 2014 for plagiarism, posted the exchange cut off before Smith answered. "Senator Eric Schmidt Just CAUGHT Jack Smith perjuring himself on the stand in his testimony," he wrote, misspelling the senator's name, and said Smith "sat there acting dumbfounded and completely clueless." Sean Hannity posted the senator's what-would-you-say line as though it were the end of the story rather than the middle. A producer for Mark Levin's show did the same. Accounts belonging to Sidney Powell, who has some experience with this genre, and a retired intelligence officer and a dozen others whose names the paper will not bother with passed the clip along with the word "receipts." By Tuesday night Johnson's post was gone, after it had sat for hours under a reader-attached correction. Hannity's was gone. Levin's producer's was gone. None of them said why. Fox News reported that it had reached out to the senator's office and "not heard back," which is what Fox says when it would rather the story be about someone else's silence.

And here is the piece that separates a rumor from a lie. The Charlie Kirk Show had the senator on that evening, after the box score had been read into the hearing record, after the clips were deleted, after the Associated Press had spelled out Hawks and Hawkeyes side by side. Andrew Kolvet, who speaks for Turning Point USA, told him: "Jack Smith is a total dirtbag, and you caught him out on this NBA game, too, by the way, in Atlanta." He added, "It was a great moment, so good for you on that," and said he wanted to give the senator some flowers. Schmitt accepted them. The only "NBA or NCAA men's game" that night, he explained, was in Atlanta, which is true and is also the entire error, restated on purpose as a defense. Asked by CNN whether he had made a mistake, he said, "There's not a mistake. I asked him if he was in Atlanta." Asked by TMZ, he said he was not embarrassed, several times, and suggested people ought to question whether Smith "really went to the one he says." Then he went on X and wrote, "Who knew Jack Smith was a Caitlin Clark fan?" Whether the witness had perjured himself, he told reporters, would be "up to a prosecutor to determine."

So the paper will do what the senator would not and state the record plainly. Jack Smith was not in Atlanta on February 3, 2024. He was in College Park, Maryland, watching a college basketball game, with federal marshals, and the only document anyone has produced says so. He did not perjure himself. He was not dumbfounded; he was reading a poster board for the first time. The gotcha did not work. It detonated on the pad, on camera, with a Democratic senator reading the score aloud, and the people who told you otherwise afterward had watched it happen.

Now the question the paper has been circling. Is any of that a crime? The paper looked, and the honest answer is that the law has all the pieces and has never bothered to assemble them. Lying to Congress is a felony. Lying about what happened in Congress, to several million people, with the tape in your hand, is content. The senator himself is untouchable for anything he said in that room; the Constitution's Speech or Debate Clause was written for exactly this and the paper does not want it repealed. His hosts and clippers are a different matter, and the country has already run this experiment once. Fox News paid Dominion $787.5 million in 2023 rather than let a jury hear what its hosts had said privately about the election lies they read aloud. Newsmax paid Smartmatic $40 million and then Dominion $67 million. Smartmatic's $2.7 billion case against Fox is still sitting in a Manhattan courtroom without a trial date. All of that was civil, and all of it was possible only because the victim was a corporation with lawyers on retainer. Jack Smith is a private citizen now, and the people who called him a perjurer to millions know that suing them would take years he does not have and money he would not recover.

The paper is aware of the objection, which is that the Supreme Court has said lying, by itself, is protected speech. It has also said, in a 1964 case out of Louisiana, that a knowing falsehood about a public official is not protected, even from criminal punishment, and roughly a dozen states still have criminal libel statutes on the books that nobody uses. So it is not the Constitution stopping anyone. This paper's proposal is narrow enough to survive it: not opinion, not error, not spin, but the knowing publication of an edited record of an official proceeding, to accuse a named person of a crime, after the correction is on the record and in your hand. That is not journalism and it is not politics. It is fabrication with a timestamp, and the timestamp is what makes it provable. If the senator's clip had ended where the hearing ended, there would be no story here. It ended where the lie was still true. Somebody made that cut. The paper thinks they should have to explain it to a judge.

Five clowns. One for the senator, who had a poster board and did not read it, and four for the people who did.