Jack Smith’s Final Say: Takeaways From The Special Counsel’s Report

Special counsel Jack Smith’s just-released report provides fresh insights into his bid to hold Donald Trump responsible for his efforts to overturn the 2020 presidential election.

Smith insisted he amassed enough evidence to win a conviction if the case had made it to trial, and he laid out a comprehensive compendium of the facts he might have presented to a jury. At the same time, his report struck a defensive tone, as he sought to explain why the case never made it that far.

The public report is also incomplete. Its second volume, which pertains to Smith’s investigation of the classified documents found at Trump’s Mar-a-Lago estate after he left office in 2021, remains secret.

Attorney General Merrick Garland does not intend to publicly release that portion of the report, though he wants to share it with select lawmakers. U.S. District Judge Aileen Cannon has blocked any dissemination of it outside the Justice Department. And once Trump is inaugurated next week and assumes control of the department, it will be easy for him to forestall any formal release of Smith’s final assessment of the documents case.

Still, the 137-page write-up on the election case is a final accounting of how Trump sought to derail the transfer of power four years ago, how investigators built and litigated an unprecedented conspiracy prosecution against a former president, and how that prosecution fizzled when Trump won back the White House.

Here are POLITICO’s top takeaways from the historic document.

Smith comes to Garland’s defense

A common sentiment on the left is that Garland was too deferential to Trump after Joe Biden took office and failed to unleash the full might of the department on the former president for nearly two years. The delay, critics say, made it much more difficult for Smith — once he was appointed in November 2022 — to bring Trump to trial before the 2024 election.

But Smith’s report emphasized that the Justice Department was aggressively investigating leads related to Trump long before the special counsel’s tenure began. Litigation tactics by Trump and his allies, Smith argued, were the key factors that slowed the process to a crawl.

For example, Twitter, newly purchased by Elon Musk, delayed Smith’s effort to access Trump’s account data for weeks despite a court order that ultimately resulted in the company being held in contempt and fined $350,000.

It took Smith more than a year to obtain text messages between Rep. Scott Perry (R-Pa.) and Trump DOJ official Jeffrey Clark. And the department spent months fighting to access communications of John Eastman, a lawyer who helped devise Trump’s last-ditch efforts to remain in power.

The most protracted battles of all stemmed from Trump's “broad invocation of executive privilege to try to prevent witnesses from providing evidence,” Smith wrote. It took months of secretive legal proceedings to secure testimony from Trump White House aides such as Mark Meadows, Dan Scavino and Pat Cipollone. Former Vice President Mike Pence also resisted testifying until a court ordered him to reveal some — but not all — details about his interactions with Trump. Smith noted that judges broadly rejected Trump’s privilege claims, with one holding that he was engaged in an “obvious” effort to delay the investigation.

Smith also drew attention to what may have been his biggest foil: the Supreme Court. He pointed out that the justices rebuffed his effort to put Trump’s presidential immunity claims on a similar timetable to the one the court adopted five decades earlier in litigation over Watergate and President Richard Nixon’s tapes.

And Smith argued that the Supreme Court’s resolution of Trump’s immunity assertion essentially guaranteed another round of litigation that would have been all but certain to return to the justices if Trump had not won the election and the prosecution had continued.

Smith’s path not taken: An insurrection charge

Much of Smith’s report amounts to a justification of the special counsel’s “charging decisions” — his reasons for bringing four felony counts against the former president. Smith also explained publicly for the first time his decision not to charge Trump with one of the gravest potential crimes in DOJ’s arsenal: inciting insurrection.

The bottom line, Smith said, was legal uncertainty about the federal insurrection statute. The law had not been used in 100 years. It may not have applied to a situation in which a sitting president sought to illegally retain power rather than an outside force seeking to depose a lawful administration. And, in a notable concession to Trump, Smith acknowledged the evidence didn’t show that Trump intended to cause “the full scope” of violence that occurred on Jan. 6, 2021.

“The evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay,” Smith concluded. But federal investigators, he said, “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.”

A few tantalizing tidbits of evidence

Much of the evidence that Smith recounted has already appeared in prior court filings or was unearthed by the congressional investigation into Jan. 6. But there were a few striking new details in Smith’s report:

• A Signal exchange between Rep. Scott Perry (R-Pa.) and Trump DOJ official Jeff Clark in which Clark indicated a classified review of potential voter fraud evidence found “nothing helpful to P” — shorthand for President Trump.
  
• Details of interviews with Trump’s fake electors in which some described concerns about being duped into a plan intended to “overthrow the government.”
  
• An analysis that found Trump was watching Fox News on Jan. 6 when the broadcast aired an interview with a supporter marching to the Capitol who berated Pence for refusing Trump’s pressure to overturn the election. Moments later, Smith noted, Trump tweeted an attack on Pence, fueling the anger of the mob just as Pence was being evacuated to safety.

Will the public get to see the primary documents?

Smith’s report described the trove of evidence he assembled in narrative form. But the fate of the trove itself could be even more significant than his ultimate conclusions.

The House Jan. 6 select committee similarly mounted a two-year investigation and produced a voluminous final report. But it was the committee’s enormous cache of witness transcripts and primary source documents — drawn from Trump’s files in the National Archives, emails obtained through subpoenas and evidence produced during court battles — that has proved more enduring.

Smith reached into areas the select committee could not, getting grand jury testimony from Pence, Meadows and other top aides, including some returning to the White House next week. Those transcripts remain sealed, but there are several legal efforts underway to bring them into public view.

The Justice Department is due to respond to two of those efforts this week, a potential window into whether prosecutors may deem the public interest in the underlying materials of greater value than their continued secrecy, particularly now that the criminal case has been dropped.