The Justice Department delivered part of special counsel Jack Smith’s report to Congress early Tuesday morning, explaining his charging decisions related to the probe into now-President-elect Donald Trump’s alleged efforts to subvert the 2020 election leading up to and during the attack on the U.S. Capitol on Jan. 6, 2021.
The report was originally intended to include information about Smith’s prosecution of Trump for his alleged illegal retention of classified documents at Mar-a-Lago, his Florida resort. But because the case is still active against two of Trump’s co-defendants, Attorney General Merrick Garland agreed to keep those details under wraps for now. That case is likely to unravel entirely once Trump takes office, so it is highly unlikely that the public will ever see that information.
Smith explicitly says he believes the department had enough evidence to obtain and sustain a conviction were Trump to stand trial.
The 137-page document was first obtained by The New York Times.
“The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President 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, which the Office stands fully behind,” the document reads. “Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
Trump was indicted in August 2023 on four felony charges connected to Jan. 6: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The latter charge was for allegations of intimidating voters as well as state and election officials.
Trump spent months filing motions to dismiss the election subversion case, invoking everything from vindictive prosecution to total immunity, but was eventually scheduled to go to trial in March 2024. He eventually raised the question of whether presidents were entitled to immunity from prosecution to the Supreme Court, leaving the case in a lurch for weeks until justices ruled, 6-3, that presidents are immune from prosecution for “official” acts and entitled to “presumptive immunity” for unofficial acts.
Smith revised and narrowed the original indictment to reflect the Supreme Court’s interpretation of immunity rules. His revised indictment would have forced Trump to defend certain conduct, including his speech from the Ellipse in Washington on Jan. 6 and his calls pressuring election officials to “find” votes for him, as “official” activity instead of campaign activity.
But Trump’s victory over Vice President Kamala Harris in November sealed the case’s fate: It was dismissed without prejudice, meaning it could be brought again at a later date. Since Justice Department guidance recommends that sitting presidents cannot be sentenced, however, Smith backed off.
In the report, Smith defended the investigation from its inception, writing that Trump’s “unprecedented efforts to unlawfully retain power” after he lost the 2020 election “compelled” prosecutors to act.
“Indeed, Mr. Trump’s cases represented ones ‘in which the offense [was] the most flagrant, the public harm the greatest, and the proof most certain,’” Smith wrote, quoting a passage from the 1940 text “The Federal Prosecutor” by Robert Jackson, once the chief U.S. prosecutor at the Nuremberg trials for Nazis.
Without regard for politics, “or the possible personal or professional consequences of a prosecution for me or any member of his office,” Smith said, investigators had “one north star.”
It was “to follow the facts and law wherever they led,” the now-former special counsel wrote. “Nothing more and nothing less.”
Smith, once the leader of the Justice Department’s public integrity division, said his office stands “fully” behind the decision to charge Trump because “to have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant. After nearly 30 years of public service, that is a choice I could not abide.”
The report is divided into several sections, with much of it reiterating allegations Smith laid out in the revised indictment last August, but the final report also contains explanations for why prosecutors opted against charging Trump with other crimes, including crimes under the Insurrection Act.
In U.S. history, there is little legal precedent available to help prosecutors interpret that law. To charge Trump, they would need to first define that what unfolded at the Capitol was unequivocally an insurrection against the authority of the U.S. and its laws. Then, they would need to prove that Trump incited the insurrection, assisted it or provided comfort to insurrectionists.
While courts have found that Jan. 6 was an insurrection and even described it as such, Smith said, prosecutors understood there was a keen “litigation risk that would be presented by employing this long dormant statute.”
Insurrections are defined generally as an uprising against a civil or political authority or established government. Other definitions, including legal definitions, acknowledge that it can also be a “rout, riot or offense connected with mob violence,” the report notes.
Courts have also observed that insurrections typically involve overthrowing a sitting government, rather than maintaining power.
Observing this, prosecutors said, they saw “another challenge to proving beyond a reasonable doubt that Mr. Trump’s conduct on January 6 qualified as an insurrection given that he was sitting president at that time.”
As they pored over litigation involving insurrectionary acts in years past to draw the comparison to Trump, Smith said, prosecutors could not find a single case in which a criminal defendant was charged with insurrection for “acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside.”
If Smith would have charged Trump with violating the Insurrection Act, it “would have been a first, which further weighed against charging it, given the available charges, even if there were reasonable arguments that might apply.”
No matter how “strong the proof that he incited or gave aid and comfort to those who attacked the Capitol,” Smith wrote, the path to charging him under the statute was too “fraught with uncertainty.”
A reasonable case could have been made by applying “incitement” standards, too, especially given the evidence that Trump knew the violence at the Capitol was foreseeable and “that he caused it,” Smith wrote. Trump understood the riot would benefit his plan to thwart the certification of the 2020 election, the report said, and he could use any disruption to leverage his position.
“But the Office did not develop direct evidence — such as an explicit admission or communication with co-conspirators— of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on Jan. 6,” Smith wrote.
The charges that were eventually applied were the best fit because they did not introduce untested legal theories and could be defended concretely before a jury.
The report also goes into detail about some of the hurdles prosecutors faced once the indictment was made.
Trump’s “ability and willingness to use his influence and following on social media to target witnesses, courts and department employees” forced the special counsel’s office to “engage in time-consuming litigation to protect witnesses from threats and harassment,” Smith wrote.
That “intimidation and harassment” was nothing new, however.
In fact, Smith wrote, it only emphasized some of what prosecutors had alleged: Trump regularly fell back on intimidation tactics that posed “real world consequences” in his bid to control the narrative.
Recall, Smith wrote in his final report, just 24 hours after Trump was arraigned in the Jan. 6 case, he lashed out on social media, writing: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
The very next day, one of his supporters, Texas resident Abigail Jo Shry, called the chambers of the judge overseeing the case, U.S. District Judge Tanya Chutkan — a Black woman — and called her a racial slur before vowing that if Trump didn’t win the presidency in 2024, “we are coming to kill you.”
“So tread lightly, bitch. You will be targeted personally, publicly, your family, all of it,” Shry said in a voicemail.
Shry pleaded guilty to making a threat over interstate communications and will be sentenced in March. Similarly, Tiffani Gish, another Texas resident, was sentenced to just over three years in prison for threatening U.S. District Judge Aileen Cannon, the jurist overseeing Trump’s classified documents case.
Trump’s commentary prompted a narrow gag order in the case, and with Trump’s ensuing appeals, proceedings were slowed down significantly.
Regular battles over Trump’s invocation of executive privilege over witness testimony and records added to delays. While investigators interviewed nearly 300 people and compiled a terabyte of records, Smith’s report notes, Trump’s repeated assertion of executive privilege caused major delays to the special counsel’s office receiving important records and evidence, including “testimony from senior White House staff and Executive Branch officials about topics such as Mr. Trump’s knowledge that he had lost the election and the pressure campaign Mr. Trump waged against the Vice President [Mike Pence] to convince him to reject legitimate elector slates at the Jan. 6 certification proceeding.”
In his failed to bid to stop the publication of the report, Trump argued the findings were nothing more than a “political hit job” meant to upset the transition of power.
On Tuesday morning, Trump took to his perch on his social media platform, Truth Social, and dubbed Smith a “lamebrain prosecutor” who was “unable to get his case tried before the Election, which I won in a landslide.”
Over 140 police officers were injured and several people died in the wake of the Jan. 6 riot. At least 123 people have been charged with using a deadly or dangerous weapon. Trump has vowed to pardon rioters, frequently calling them “hostages” and “patriots.”
Experts have warned that blanket pardons for Jan. 6 would set a dangerous new precedent and potentially spark a resurgence of white supremacist violence.
In an interview with USA Today after the election, Joan Donovan, the founder of the nonprofit group the Critical Internet Studies Institute, warned indiscriminate pardons signaled “something very dangerous, not just for America but also for what could eventually turn into a civil war.”
“I think that if Trump does pardon some of the more serious vigilantes from Jan. 6, that sends a clear message — that he is building a private army,” Donovan said.
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