Special counsel report says Trump would have been convicted in an election case

Jack Smith, the special counsel who charged President-elect Donald J. Trump with illegally trying to hang on to power after losing the 2020 election, said in a final report released early Tuesday that the evidence would have been sufficient to judge Mr. Trump in a trial, his election victory in 2024 had not made it impossible for the prosecution to proceed.

“The Department’s view that the Constitution prohibits the continued impeachment and prosecution of a President is categorical and does not turn on the seriousness of the crimes charged, the strength of the government’s evidence, or the merits of the prosecution, which the office fully supports ,” Mr. Smith wrote.

He continued: “Yes, but for Mr. Trump’s election and impending return to the presidency, the office determined that the evidence admitted was sufficient to obtain and sustain a conviction at trial.”

The Ministry of Justice delivered the volume of 137 pages — represents half of Mr. Smith’s Collected Final Report, with the volume on Mr. Trump’s second federal case accusing him of mishandling classified documents, still confidential — to Congress just after midnight Tuesday.

The report was an extraordinary rebuke of a president-elect covering up a landmark legal saga, with the man poised to reclaim the nation’s highest office on charges of crimes that struck at the heart of American democracy. And although Mr. Smith resigned as special counsel late last week, his retelling of the case also served as a reminder of the vast array of evidence and detailed accounts of Mr. Trump’s actions that he had gathered.

In his report, Mr. Smith Mr. Trump to task, not only for his efforts to overturn the results of a free and fair election, but also for consistently encouraging “violence against his perceived opponents” throughout the chaotic weeks between Election Day and Jan. 6, 2021, when a mob of Trump supporters stormed the Capitol and injured more than 140 police officers.

Mr. Smith laid the attack on the Capitol right before Mr. Trump’s feet and quoted from the evidence in several criminal cases of people charged with participating in the riot who made it clear they believed they were acting on Mr. Trump’s behalf.

In several lengthy footnotes, Mr. Smith the trauma experienced by Capitol Police officers who were attacked during the riot, including “shell shock” and the inability to move. He quoted an officer describing efforts to prevent rioters from getting to congressional staffers inside the Capitol; the officer said that for them it could have meant “possible death. People are being killed, maimed.”

Another officer recalled rioters trying to beat the police “with such ferocity” and wondered, “What are they going to do to somebody else who’s in here, maybe a staffer or a congressman or somebody with the press? How is—what will they do to them? You know, like we can take a beating. And I don’t know if these other people can take a beating too.”

The report’s description of this violence was all the more remarkable since Mr. Trump has repeatedly promised to pardon many defendants on Jan. 6, possibly including those who assaulted police officers that day.

The report also gave a sense of the extent of Mr. Smith’s inquiry, noting that his team had interviewed more than 250 people and obtained grand jury testimony from more than 55 witnesses. Mr. Smith said the work of the House committee investigating the Capitol attack and before his investigation was only “a small part of the office’s investigative record.”

The report contained an extensive rationale for pursuing the prosecution, given what Mr. Smith called Mr. Trump’s “unprecedented criminal effort to overturn the legitimate results of the election to maintain power.”

It described numerous challenges facing the investigation, from legal battles over executive privilege and presidential immunity to Mr. Trump’s “ability and willingness to use his influence and social media following to target witnesses, courts and department employees required the office to engage in time-consuming litigation to protect witnesses from intimidation and harassment.”

One of the most serious obstacles facing prosecutors, wrote Mr. Smith, was that the attempts to keep Mr. Trump’s charges both for mishandling classified documents and for trying to undermine the 2020 election took place while he was seeking the White House again.

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

The report contained little information about Mr. Trump’s actions, which had not already been made public through his indictment filed in Federal District Court in Washington in August 2023, or in a lengthy memorandum of evidence that Mr. Smith filed in October, part of the fallout. from the Supreme Court’s decision that Mr. Trump enjoyed presumptive immunity for his official acts as president.

While there had been some speculation that Mr. Smith’s report would provide new details about several unindicted co-conspirators described in the indictment — such as Jeffrey Clark, a former Justice Department official, and Rudolph W. Giuliani, Mr. Trump’s personal lawyer – the report turned out to say little new about them.

Without naming any specific individuals, Mr. Smith briefed that his team “had made a preliminary determination that the admitted evidence might justify seeking charges against certain co-conspirators” and had begun evaluating whether such a new case should be joined with Mr. Trumps or brought separately.

“Because the office reached no final conclusions and did not seek charges against anyone other than Mr. Trump — the leader of the criminal conspiracies and their intended beneficiary — this report does not further elaborate on the investigation and preliminary assessment of uncharged individuals,” it said. “This report should not be read to allege that any particular individual other than Mr. Trump committed a crime, nor should it be read to exonerate any particular individual.”

The release of this single volume of the report came less than a day after the Florida judge who oversaw Mr. Trump’s other federal case, that of the classified documents, issued a ruling allowing it to be released.

But the judge, Aileen M. Cannon, who was appointed by Mr. Trump also prevented the Justice Department from immediately releasing — even to Congress — the second volume of Mr. Smith’s report, which deals with the document case. Judge Cannon has scheduled a hearing for Friday at her home courthouse in Fort Pierce, Fla., to discuss how to handle just that crowd.

For more than a week, Mr. Trump’s lawyers — who were shown a draft copy of Mr. Smith’s report prior to its release—that as little more than an “attempted political hit job designed solely to disrupt the presidential transition.” The lawyers fought the release of the report until the last minute, but were ultimately unable to stop the volume on the election case from getting out.

In a post on social media shortly before 2 a.m. Tuesday, Mr. Trump, angered by the report’s release, called Mr. Smith was “disturbed” and insisted the prosecution was political.

“Jack is a lame-duck prosecutor who was unable to get his case to trial before the election, which I won in a landslide,” Trump said. “THE VOTERS HAVE SPOKE!!!”

The election charges that Mr. Smith went against Mr. Trump, accused him of engaging in three intersecting conspiracies to overturn his loss to President Biden. Mr. Smith also filed a separate indictment in Florida charging Mr. Trump for illegally keeping classified documents after he left office and for conspiring with two co-defendants to thwart the government’s repeated efforts to get them back.

After Mr. Trump won the 2024 election, dropped Mr. Smith cases because of a Justice Department policy that prohibits the prosecution of sitting presidents. Under a separate department regulation, he was required to document the decisions he made in both cases and submit a final report on them—one volume on each prosecution—to Attorney General Merrick B. Garland.

Last week, the Department of Justice said that Mr. Garland planned to delay the release of the classified documents case until all court cases related to Mr. Trump’s two co-defendants were terminated.

Lawyers for the co-defendants, Walt Nauta and Carlos De Oliveira, fought the release by obtaining a preliminary injunction last week from Judge Cannon, who had dismissed the case over classified documents last summer.