Why Indicting Jack Smith Faces Steep Legal Obstacles

WASHINGTON — President Donald Trump has made no secret that he believes former special counsel Jack Smith should be prosecuted, but his administration would face significant legal and practical hurdles in bringing charges, according to legal experts cited by NBC News.

The analysis follows a criminal referral issued by House Judiciary Committee Chairman Jim Jordan (R-OH) on July 22, 2026, accusing Smith of making “willfully and intentionally false statements” during an eight-hour congressional deposition in December 2025. The House Judiciary Committee formally referred Smith to Acting Attorney General Todd Blanche for prosecution, arguing that newly released documents contradicted Smith’s testimony about whether his team accessed lawmakers’ text messages.

Background: The Smith Investigations

Jack Smith was appointed special counsel in November 2022 by then-Attorney General Merrick Garland to oversee two investigations: alleged interference in the 2020 presidential election and alleged mishandling of classified documents by Trump after his first term. Both investigations resulted in indictments, but following Trump’s victory in the 2024 election, the cases were dismissed under long-standing Justice Department policy preventing the prosecution of a sitting president.

The core of the current dispute centers on whether Smith’s team improperly accessed privileged communications from members of Congress. According to NBC News, the Senate Judiciary Committee, led by Sen. Chuck Grassley (R-IA), released documents showing Smith’s team reviewed text messages from 44 members of Congress — mostly Republicans — sent to White House officials between October 2020 and January 2021.

The Criminal Referral

In his referral letter, Jordan alleged that Smith lied when asked whether he had obtained or reviewed lawmakers’ text messages. Smith testified that he “only sought telephone toll records” and did not recall seeking a search warrant for text message content. Jordan argued that Smith’s responses “gave the impression that neither Mr. Smith nor his team had access to the content of members’ privileged text messages” — an assertion he says is now contradicted by evidence.

The Justice Department confirmed receipt of the referral and stated it “will investigate all evidence of criminal conduct,” according to Fox News.

Three Barriers to Indictment

Legal experts identify three primary obstacles facing any attempt to prosecute Smith:

1. Prosecutorial Immunity

As a former Department of Justice attorney who acted within the scope of his duties as special counsel, Smith likely enjoys immunity for actions taken as part of his official responsibilities. This doctrine protects DOJ attorneys from criminal prosecution for conduct related to their work, creating a significant legal hurdle for any charges.

2. Weak Evidence

Former prosecutors describe the case as “weak,” noting that the core dispute involves whether Smith failed to volunteer information rather than whether he made an actual false statement. Perjury and false statement charges require proof of intentional deception. Smith’s attorneys, Peter Koski and Lanny Breuer, called the referral “meritless,” arguing that “the referral is made not because Mr. Smith made a false statement — the letter concedes he did not — but because he did not proactively disclose information that was not responsive to a question asked.”

3. Grand Jury Resistance

Washington D.C. grand juries have a track record of resisting aggressive or politically motivated prosecutions. Legal experts cited by NBC News noted that a grand jury in the District would likely scrutinize any case against Smith with particular skepticism, given the political context and the unusual nature of prosecuting a former DOJ attorney for congressional testimony.

Political Implications

The criminal referral places Acting Attorney General Todd Blanche and the Trump administration in a politically sensitive position. If the DOJ declines to prosecute, it may fuel Republican allegations of a “two-tiered justice system.” If it does prosecute, it could undermine long-standing protections for DOJ attorneys who investigate political figures, potentially deterring future special counsels from pursuing aggressive investigations.

Rep. Jamie Raskin (D-MD), the ranking Democrat on the House Judiciary Committee, blasted the referral, saying it “deliberately distorts and misstates the facts.” Raskin noted that Republicans “never asked Jack Smith about presidential records” or whether his team reviewed text messages from members, adding: “Jack Smith could not have lied because Republican Members never even asked the question their theory is based on.”

What’s Next

The DOJ has said it will investigate the referral, but legal experts expect the administration to face a difficult path if it attempts to secure an indictment. Smith may also be called to testify before the Senate Judiciary Committee in the coming months. The dispute over the Speech and Debate Clause and lawmaker privacy protections could also become a flashpoint in the 2026 midterm elections.

For now, the combination of prosecutorial immunity, limited evidence, and skeptical grand juries appears to make an indictment of Jack Smith a long shot — regardless of the political pressure to pursue one.