Jack Smith Has His Say

A long awaited first volume of Jack Smith’s investigations is now public.

Photo by Jerry Lampen

Donald Trump’s lawyers fought to prevent the release of Special Counsel Jack Smith’s report on Trump’s criminal efforts to overturn the 2020 election. Now that the Justice Department has released that portion of his two-volume report to the public, it’s easy to see why.

Unlike the Mueller Report, which was a troubling but ultimately noncommittal document that a wily and cynical Bill Barr could spin so Trump could misleadingly claim exoneration, Smith’s report is a damning, full-throated condemnation of Trump. It cuts Trump off from falsely claiming his innocence, and it will leave a permanent asterisk by Trump’s name in the history books.

The headliner is this: Smith concluded that Donald Trump would have been found guilty on each of three conspiracy counts, had he not won reelection this year, a result that forced Smith to dismiss the charges per Department policy of not prosecuting a sitting president. Despite the required dismissal, the admissible evidence, Smith stated in blunt terms, was “sufficient to obtain and sustain a conviction at trial.”

Smith addressed a claim by Trump made recently to try and stop the release of the report. His lawyers had written to Attorney General Merrick Garland claiming that dismissal of his criminal cases signified Mr. Trump’s “complete exoneration.”

“That is false,” Smith wrote to Garland.

He added, “The Department’s view that the Constitution prohibits Mr. Trump’s indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution — all of which the Office stands fully behind.”

In lay terms, the guy was guilty AF and we were going to nail him. But dammit, he got reelected.

Much of what the report covers was already public knowledge, revealed during the January 6 Committee hearings, the indictment and superceding indictment and press reporting. But beyond the clear statement of proof of Trump’s guilt, there are other important takeaways in this 137-page report, so let’s jump right in and pull out some highlights for discussion.

The violence at the Capitol was Trump’s fault

The final, pared down indictment, which followed the Supreme Court’s ruling on immunity, didn’t devote much ink to the violence that erupted at the Capitol on January 6. Rather, that indictment, like the broader one before it, turned on the “soft” conspiracies within the White House to overturn the election, though it did touch on Trump’s efforts to leverage the violence on that day to his advantage.

Through this report, Smith got a chance to lay out more of the facts and evidence pointing to Trump as the party to blame for the violence. Specifically, Smith cited testimony from several convicted January 6 defendants who stated expressly they had acted on Trump’s behalf. With pardons from Trump for such defendants clearly in mind, Smith laid out the injuries and trauma suffered by police officers that day as well as their thinking in some extensive footnotes within the report.

One officer described efforts by the authorities to prevent the insurrectionists from gaining access to workers inside the Capitol, noting that it could have meant “possible death” because people “are getting killed, maimed.” Another officer wondered, “What are they going to do to somebody else that’s in here, that’s maybe a staff or a congressman or somebody with the press? How are — what are they going to do to them? You know, like, we can take the beating. And I don’t know if these other people can take the beating, too.”

But if all this was Trump’s fault, why didn’t Smith bring an incitement of insurrection charge directly, the very article over which Trump had been impeached by the House?

Smith finally answered that question, confirming what many legal analysts had suspected. He wrote that he had considered bringing an insurrection charge but decided against invoking this “long-dormant statute” in Trump’s case because there was very little to no case law on point to support it. He admitted that his team could not find a case where someone had been charged for “inciting, assisting, or giving aid or comfort to rebellion or insurrection.”

In rare cases where the statute was invoked, they always involved someone who directly engaged in insurrection. He wrote of Trump, “However strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first.”

Reading a bit between the lines, Smith is saying that giving this Supreme Court a first crack at that law would have been both risky and foolish, as it would have been a case of first impression. The conservative majority likely would have found any number of ways to undermine or defang the charge entirely, putting a big question mark over any conviction Smith might have been able to obtain.

No proof of a conspiracy with the Proud Boys and Oath Keepers

Smith also passed on charging Trump with a conspiracy to impede or injure an officer of the U.S. because he lacked proof that the co-conspirators “specifically agreed to threaten force or intimidation against federal officers.”

This may not get much coverage in the press, but it is an important concession. One of the first things that Merrick Garland began investigating following the attack on the Capitol was whether any direct, causal connection existed between right wing militia groups that coordinated and helped launch the attack on January 6 and officials within the Trump campaign or the Trump White House. After all, key advisors of Trump such as Roger Stone were knee-deep with these militias, and Stone even held encrypted group chats that included some of their leaders.

Stone was sharing physical space at the Willard Hotel with some of the unindicted co-conspirators named in Smith’s indictment. Understandably, a great deal of investigative and prosecutorial energy, as well as media pressure, was focused on obtaining indictments and convictions of Proud Boys and Oath Keepers, with the hope that this would lead to a conspiracy that involved higher-ups within Trumpworld.

Despite obtaining important convictions against the likes of Enrique Tarrio and Stewart Rhodes, the investigation on a connection between them and the Trump camp hit a dead end. While there was circumstantial evidence that suggested involvement or foreknowledge of the militia’s activities by Trump advisors or even Trump himself, there was never a “smoking gun” confirming this.

To level such an explosive charge, Attorney General Garland, and later Smith, would have needed airtight evidence of a conspiracy involving the White House and these right wing militias, and in this case there simply was insufficient proof. Garland had probably concluded as much already after spending much of 2021 and 2022 trying to unearth it.

Answering critics on the left

It admittedly has always bothered me that critics of Garland claim he did nothing at all and sat on the case, while critics of Smith say he moved too slowly once he had the cases.

Soon after he was appointed, Garland launched an unprecedented investigation into the attack on the Capitol that has resulted in over 1,500 convictions. He also authorized an investigation into Trump’s possible connection to these right-wing militias immediately and got to prosecuting those leaders right away, hoping it would lead to further evidence of a conspiracy to use force at the Capitol. A big issue critics have with Garland really is that this part of the investigation turned up empty.

The Justice Department also had begun an immediate investigation into the “soft” conspiracies around the fake elector scheme and the use of Mike Pence to overturn the election. As legal analyst Marcy Wheeler notes, the Department seized the cellphone of Rudy Giuliani (co-conspirator #1 in the indictment) in April of 2021. In September of 2021, it issued subpoenas for documents relating to efforts by Sidney Powell (co-conspirator #3) to fundraise off of voter fraud efforts. And when it did charge people key to the attack, those trials were delayed for months due to the backlog of cases from the Covid-19 pandemic.

In his report, Smith also responded to critics on the left who complain that the Department didn’t move fast enough. He insisted, in my view correctly, that even with the many challenges they faced, which I’ll discuss in greater detail below, there had been time enough to prosecute the cases after indictments landed in the summer of 2023. It was the delay by Trump-friendly justices and judges, and Trump’s reelection in November, that scuttled all of that.

Indeed, even if the indictments had dropped six months earlier, it seems clear that it wouldn’t have mattered with this Supreme Court. The radical justices were in no hurry to hear arguments on immunity, then they delayed a ruling until the end of the Court’s term before issuing their ruling, knowing full well there would be no time before the election to resolve the scope of immunity questions it had raised.

Other challenges faced by the prosecution

The report also detailed many unique challenges the prosecution faced in the D.C. investigation and court case that wound up eating into the resources of the Department and shifting the calendar back.

The first involved executive privilege. Normally, if the government wants to speak with someone or obtain testimony, the witness has two options: cooperate with authorities or claim a privilege against self-incrimination, known generally as taking the Fifth. But in Trump’s case, there was an added wrinkle: Witnesses often claimed “executive privilege” as a defense and refused to meet with or speak to investigators at all.

Executive privilege is a fairly loose area of the law. Much of it remains untested, even after scandals like Watergate where Nixon sought to assert it against a subpoena for tapes of his Oval Office conversations. Trump acolytes claimed that their conversations with the president were privileged because to require them to speak about them would, among other things, undermine their ability to speak frankly and candidly to the chief executive. The Department had to go to court several times to battle witnesses such as Trump’s former chief of staff Mark Meadows to overcome claims of executive privilege.

Indeed, all in all it took nine months of high-stakes but highly secretive court battles to force grand jury testimony from the likes of Meadows and Trump’s former vice president, Mike Pence. This underscores the fact that the public, by design, knew little about what was going on behind the scenes, and we really only heard about the case when reporters could obtain information from witnesses or their attorneys.

Speaking of attorneys, it’s also worth noting that attorney-client privilege proved a bigger barrier in this case than in most criminal matters. As Wheeler points out, Smith had noted in a filing that “at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign.” Indeed, the original indictment named no less than six co-conspirators, all of whom were lawyers who frequently raised attorney-client privilege to keep their communications with Trump from becoming public.

Another challenge of course was the claim of presidential immunity, a defense that no one at the time believed the Supreme Court would permit to extend so far. Recall that under the rules announced in Trump v. United States, it would even be possible for the president to order the assassination of a political opponent by Seal Team 6, and that would escape criminal prosecution because it falls within the basic official powers of the presidency.

The shocking breadth of that immunity grant, after the Court deliberately stalled and used up seven precious months of the trial calendar before the election, forced Smith to file an amended indictment that focused only on the unofficial acts by Trump, meaning where he was acting as a presidential candidate and not arguably within his official capacity. Even so, Smith was confident that the evidence and charges that had escaped the gravitational pull of presidential immunity were sufficient to land a conviction. And that is no small matter.

Smith also got an opportunity in his report to blast Trump for targeting witnesses and court officials over social media. These attacks had a direct effect on his office’s ability to prosecute the case against Trump. Specifically, it “required the office to engage in time-consuming litigation to protect witnesses from threats and harassment.”

Smith reserved a section of the report to discuss the most serious obstacle of all: the political minefield of trying to prosecute cases while Trump was also a top presidential candidate:

Mr. Trump’s announcement of his candidacy for president while two federal criminal investigations were ongoing presented an unprecedented challenge for the Department of Justice and the courts. Given the timing and circumstances of the special counsel’s appointment and the office’s work, it was unavoidable that the regular processes of the criminal law and the judicial system would run parallel to the election campaign.

We all remember how often Trump and his friends in the media at Fox and other right wing outlets claimed that the entire prosecution was political in nature and designed to interfere with Trump’s reelection bid. Smith denied this of course, as the very opposite was true: Trump announced his bid early precisely so he could claim that any case filed thereafter against him was politically motivated.

Still, Smith had to work around the realities of a presidential campaign and work extra hard never to give even the appearance that the prosecution weighed in any way on Trump’s campaign schedule.

No surprises or new evidence

Smith’s final report on the January 6 case did not, as many had hoped it would, reveal a trove of new evidence, particularly around the co-conspirators named in the indictment. If anything, Smith was careful not to stray far from Trump on this score.

Specifically, Smith stated that while the evidence could justify charges against those co-conspirators, his office “reached no final conclusions and did not seek indictments against anyone other than Mr. Trump” whom he noted was “the head of the criminal conspiracies and their intended beneficiary.” He elected not to “elaborate further on the investigation and preliminary assessment of uncharged individuals.”

“This report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.”

There are still state court cases pending against many of Trump’s co-conspirators, and this week the State Attorney General in Arizona requested a copy of Smith’s full case file for use in her prosecution of several of those individuals. The case centers around the fake elector scheme cooked up by John Eastman and Kenneth Chesebro and its deployment in Arizona.

Trump may have escaped a federal conviction over this, but his co-conspirators still face very serious state charges over which Trump has no pardon power.

Trump is quite unhappy about the report

As with his sentencing in New York following his conviction by a jury on 34 felony counts of falsifying business records, Trump remains fixated on how history will record him, and perhaps more immediately how he will be viewed by the public and the world during his second term.

After news of the release of the report hit, Trump took to social media once again to attack Smith, who has now resigned his position, calling him “deranged” and repeating his unfounded claim that the prosecution was politically driven. He added,

“Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!”

In their first year of law school, 1Ls learn a Latin phrase, res ipsa loquitur, meaning “the thing speaks for itself.” Here, Smith’s report speaks for itself in a thorough, methodical and damning way.

Today, we face the deep injustice of Trump having escaped a trial and conviction. But one day, when the history of this era is taught, it is Smith’s exhaustive report, and not Trump’s online bloviations, that will stand as the definitive narrative of the crimes that took place.