Legal Intelligence

Republican Lawmaker Files Criminal Referral Targeting Former Special Counsel Jack Smith

The referral adds institutional weight to the administration's posture toward Smith, though a referral alone does not compel DOJ action — the decision to prosecute rests with the Attorney General.

The Congressional Times · July 23, 2026

A Republican member of Congress has filed a criminal referral urging charges against Jack Smith, the former special counsel who led federal prosecutions against President Donald Trump, according to reporting by The New York Times dated July 23, 2026. The Times characterized the referral as a potential catalyst for prosecution, noting that Smith has been a named target in what the outlet described as the president's retribution campaign. The specific charges sought in the referral, the identity of the filing lawmaker, and the date the referral was transmitted to the Department of Justice were not specified in the available source material.

A criminal referral from a member of Congress is not a charging instrument and carries no binding legal authority. Under 28 U.S.C. § 547, the authority to bring federal criminal charges rests exclusively with United States Attorneys and, in matters of national significance, the Attorney General. The Department of Justice has not, as of July 23, 2026, publicly confirmed receipt of or a response to the referral, and no indictment or grand jury proceeding involving Smith has been announced in public court records.

Smith was appointed special counsel by then-Attorney General Merrick Garland in November 2022. He secured a 37-count federal indictment against Trump in June 2023 related to classified documents (U.S. v. Trump, S.D. Fla., Case No. 9:23-cr-80101) and a four-count indictment in August 2023 related to efforts to overturn the 2020 election results (U.S. v. Trump, D.D.C., Case No. 1:23-cr-00257). Both cases were dismissed after Trump's 2024 electoral victory, with Smith citing longstanding DOJ policy against prosecuting a sitting president. Smith resigned his position as special counsel in January 2025.

The filing of criminal referrals against former law enforcement officials by members of Congress is not without precedent. Congress transmitted referrals regarding former FBI Director James Comey and former Attorney General Eric Holder during their respective tenures, neither of which resulted in prosecution. Whether the current referral against Smith follows a similar trajectory or results in a formal DOJ inquiry is unknown. What is not yet publicly available is the full text of the referral, the specific statutes cited, and any written response from the DOJ — records that would be disclosed through a congressional press release, the Congressional Record, or a DOJ statement if action is taken.

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