The simple reason Jack Smith charges won’t stick as easy as Trump thinks

President Donald Trump’s latest effort to weaponize the Department of Justice against his enemies will fail for a simple reason: geography. This is according to former federal prosecutors, who told NBC News that Trump’s attempt to prosecute ex-special counsel Jack Smith will almost certainly meet the same fate as the president’s other recent lawfare endeavors. As one lawmaker characterized the likely outcome, “It will get laughed out of court.”

As NBC News explains, “Trump has made no secret that he thinks former special counsel Jack Smith should be prosecuted, but his administration would be likely to have a tough time pursuing the charges a top Republican in Congress recommended last week.” Representative Jim Jordan (R-OH), a staunch Trump ally, advised that Smith be prosecuted for allegedly misleading Congress regarding the investigation into Trump’s attempt to overturn the 2020 election. But according to several former federal prosecutors, Smith will likely be saved by two things.

First, it’s a matter of location. “The Sixth Amendment requires criminal prosecutions to be brought in the jurisdictions where the crimes were committed,” explains NBC. “Because Smith testified in person in Washington, several former prosecutors said, the charges would need to be brought in Washington.”

“I don’t see a way this could be charged elsewhere,” Mike Romano, a former attorney in the Justice Department’s Public Integrity Section, said of any potential attempt to charge Smith over the testimony. “It happened in D.C. when he testified at Congress; it would have to be charged in D.C.”

In D.C., however, “grand jurors have previously rejected novel cases against people Trump wants imprisoned.” Grand juries are comprised of local residents, and in D.C., Trump secured a mere 6 percent of the vote in 2024. Because of this, the city’s jurors “have generally stood as a bulwark against some of the administration’s most aggressive maneuvers, including a failed effort by allies of Jeanine Pirro, the U.S. attorney for the District of Columbia, to indict six sitting members of Congress over a social media video back in February. While most federal grand juries often act as rubber stamps for assistant U.S. attorneys and almost always find the prosecutors have met the low threshold of probable cause, D.C. grand juries have pushed back against cases in Trump’s second term, including declining last summer to indict a man on a felony charge for tossing a Subway sandwich at an officer.”

What’s more, says Gregory P. Rosen, a former supervisor in the U.S. Attorney’s Office for the District of Columbia, the case against Smith is unlikely to succeed simply because there is a “high bar to prosecute.”

“Even if you could get a charge to technically clear the bar, any competent prosecutor still has to ask the threshold question: Is this worth bringing? Is the juice worth the squeeze?” Rosen said. “I have a hard time — to say it mildly — seeing how this gets past a grand jury, let alone in front of a jury that has to find guilt beyond a reasonable doubt.”

He does note, however, that good-faith prosecution may not be the point, explaining, “What the administration has done so far has been to bring weak cases that nonetheless make a splash in the news, suggest that there is some wrongdoing by people and create a real drain on people’s time and money and resources to have to defend themselves. That’s not how the criminal justice system is supposed to work.”

Representative Jamie Raskin (D-MD) seconded this assessment, saying, “This referral, if ever brought before a judge, will get laughed out of court. But success on the merits is not the goal. It is meant to harass Jack Smith. It is meant to please their Fox News viewership. It is meant to whitewash their own participation in a scheme to overthrow our elections.”