Former Justice Department special counsel Jack Smith spent years investigating and prosecuting Donald Trump. Now, with Trump back in the White House as the president, Smith has become the subject of a potential criminal investigation of his own.

Earlier this month, House Judiciary Committee Chairman Jim Jordan referred Smith to the DOJ for potential criminal prosecution, alleging he made false statements during congressional testimony. President Trump has repeatedly argued that Smith should be held accountable for what he has described as politically motivated prosecutions.

Whether Smith will indeed face criminal charges remains uncertain. Although Congress can recommend prosecution, the decision ultimately rests with the Justice Department, and any case would face significant legal and evidentiary hurdles. 

The Criminal Referral

On July 22, Jordan, an Ohio Republican, sent a formal referral letter to acting Attorney General Todd Blanche, asserting that there is “strong evidence” that Smith violated 18 U.S.C. § 1001, the federal statute prohibiting materially false statements to the federal government.

The allegation stems from Smith’s Dec. 17, 2025, closed-door deposition before the Judiciary committee.

During the deposition, Smith testified that his office had sought only lawmakers’ “toll records” – that is metadata such as call logs – and had not sought warrants for the contents of members’ text messages.

Jordan contends in his letter that Justice Department records produced this month contradict that testimony. 

According to the referral, Smith’s investigation ultimately obtained text messages from 44 members of Congress, with some records reportedly acquired through the National Archives rather than by subpoena. Jordan argues that Smith’s testimony created the misleading impression that investigators had never obtained the substance of lawmakers’ communications.

Smith’s attorneys, Peter Koski and Lanny Breuer, rejected the allegation, arguing that Smith answered the specific question posed to him truthfully and was under no obligation to volunteer information beyond its scope. They contend the referral itself acknowledges that Smith did not make a false statement but instead criticizes him for failing to provide additional, unrequested information.

Maryland Rep. Jamie Raskin, the committee's top Democrat, likewise dismissed the referral, arguing that Republicans characterized Smith’s testimony by conflating questions about subpoenas with questions about presidential records maintained by the National Archives. 

“This referral, if ever brought before a judge, will get laughed out of court,” Raskin said in a statement. 

A DOJ spokesperson confirmed receipt of the referral and said the department “will investigate all evidence of criminal conduct.”

A Long-Running Conflict

Jordan’s referral is the latest development in a years-long dispute between congressional Republicans and Smith, who in November 2022 was appointed special by Attorney General Merrick Garland to oversee two high-profile criminal investigations involving Trump.

The Judiciary committee began investigating Smith’s office in 2023, and Smith testified publicly before the committee in January 2026. Republicans have repeatedly questioned the conduct of Smith’s investigations into Trump, while Democrats have defended his work as consistent with the rule of law.

The possibility of criminal liability was also raised during Blanche’s confirmation hearing, when Missouri GOP Sen Josh Hawley asked whether Smith could be prosecuted for false testimony. He responded only that testimony before Congress is taken “very seriously.”

Trump has long characterized Smith’s investigations as politically motivated “witch hunts,” while Smith has maintained that the evidence supported criminal charges against Trump and that any investigation into Smith himself would amount to political retaliation.

Smith resigned from the Justice Department shortly before Trump’s second inauguration after overseeing the federal prosecutions involving classified documents and alleged efforts to overturn the 2020 election.

Could Smith Actually Be Prosecuted?

The referral alone does not initiate criminal charges. Under federal law, Congress may recommend prosecution, but the Justice Department retains exclusive authority to decide whether to investigate and bring a case.

To secure a conviction under 18 U.S.C. § 1001, prosecutors generally must prove beyond a reasonable doubt that a defendant knowingly and willfully made a materially false statement. An answer that is incomplete, imprecise, or arguably misleading may not satisfy that standard, particularly if it is responsive to the specific question asked.

Supporters of Jordan’s referral argue that newly disclosed records contradict the overall impression Smith left during his testimony.

Smith’s defenders counter that his statements were literally accurate because they addressed only the subpoenaed toll records discussed during questioning, not every method by which investigators obtained communications.

As with many alleged false-statement cases, the precise wording of both the questions and the answers could become central to any prosecution.

The Broader Context

Smith’s tenure as special counsel has already generated significant legal controversy.

In 2024, U.S. District Judge Aileen Cannon dismissed the classified documents prosecution against Trump, concluding that Smith’s appointment violated the Appointments Clause of the Constitution. Trump allies have frequently cited that ruling as evidence that Smith exceeded his lawful authority, although other courts have upheld the special counsel framework in different contexts.

The separate federal election-interference case was dismissed following Trump’s victory in the 2024 election pursuant to the Justice Department’s longstanding policy against prosecuting a sitting president.

A criminal prosecution of a former special counsel would be unusual, though not unprecedented in the broader sense of prosecutors themselves becoming subjects of criminal investigations.

Critics argue that prosecuting Smith could reinforce concerns that successive administrations will increasingly use the Justice Department to investigate their predecessors’ officials. Supporters respond that prosecutors, like anyone else, should be subject to criminal investigation if credible evidence of misconduct exists.

What Happens Next

As of late July, Smith has not been charged with any crime. 

The Justice Department must first determine whether Jordan’s referral warrants a formal investigation and, if so, whether the available evidence supports prosecution. That process could take weeks or months.

Additional congressional hearings are also possible, though any criminal case would ultimately depend on decisions made by federal prosecutors rather than lawmakers.

For now, Smith remains at the center of a dispute that extends beyond his own conduct. The controversy raises broader questions about congressional oversight, prosecutorial accountability, and the extent to which future administrations may seek criminal investigations of former government officials. 

Whether the referral ultimately results in charges or becomes another chapter in the political and legal battles surrounding Trump’s presidency will depend less on the politics surrounding the case than on whether prosecutors conclude that the evidence satisfies the demanding legal standards required for a federal criminal prosecution.