Excerpts from Special Counsel Jack Smith’s Jan. 6 report and Trump’s efforts to overturn the 2020 election

CNN
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The evidence was there to convict Donald Trump.

That is the simple and powerful conclusion of former special counsel Jack Smith in his final report on Trump’s efforts to subvert the 2020 presidential election, culminating in the January 6, 2021 attack on the US Capitol.

Smith’s 137-page report, released overnight, less than a week before Trump is sworn in for a second term as president, is a full-throated vindication of his investigation and defense against his myriad critics.

And while he faced significant political and legal headwinds — especially from the Supreme Court — Smith said his ultimate defeat was at the ballot box when Trump was re-elected. When Trump was about to be protected from prosecution as the sitting president, according to Justice Department policy, Smith wrote, it was all over.

Another volume summarizing the second half of Smith’s work on what has been deemed a strong but now closed case against Trump over the retention of classified records after his presidency and obstruction of justice is still not public.

As with all the legal battles Trump won over the past few years, it’s part of the ultimate “what if?” the issue of the 2024 election.

Here’s what you need to know from Smith’s report:

It’s the second time a special counsel investigating Trump has pointed out that Justice Department policy means the former and future president won’t face a jury.

“The Department’s view that the Constitution prohibits the continued impeachment and prosecution of a President is categorical and does not depend 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.”, Smith wrote.

“Well, 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.”

Attorney General Merrick Garland has faced criticism from the left for not appointing a special counsel to investigate Trump until November 2022 – and Smith did not begin his work until early next year. And it wasn’t an open and shut trial. However, the special counsel indicated that the 2024 election meant he was out of time and options.

However, Smith did not guarantee a conviction – he just said there is enough evidence.

“That’s the same conclusion any prosecutor has to come to before indicting that there’s enough there for a jury to convict,” said CNN senior jury analyst Elie Honig. “He’s not making some boastful predictions about what a hypothetical jury would have done.”

Trump, who as of January 6, 2021 has insisted he did nothing wrong and now plans to pardon many of those arrested, charged and convicted of rioting at the Capitol that day, has repeatedly said he was acquitted, since the charges were dropped. Trump’s lawyers even included his “fully exonerated” line in a letter to the attorney general trying to block the release of the report.

But Smith said that is absolutely not the case.

“Mr. Trump’s letter claims that dismissal of his criminal charges constitutes Mr. Trump’s ‘complete exoneration,'” Smith wrote. “This is false.”

Trump and the public have seen this language before.

Former special counsel Robert Muller, in his report on alleged collusion between the Trump campaign and Russia in the 2016 election, said there was more than enough evidence to charge Trump with obstruction of justice, but did not.

“While this report does not conclude that the president committed a crime, it also does not exonerate him,” Mueller wrote in 2019 during Trump’s first term.

“If, after a thorough examination of the facts, we had confidence that the president clearly did not commit obstruction of justice, we would say so,” Mueller said.

And while Trump has pleaded not guilty to the federal charges and consistently called the investigation a “witch hunt,” his lawyers had no rebuttal to the facts in Smith’s report, the special counsel said.

A letter from Trump’s lawyers to Garland, Smith wrote, “cannot identify any specific factual objections to the draft” report they reviewed prior to its public release.

While Smith claims he could have obtained a conviction, he acknowledges the obvious: The Supreme Court was a deciding factor.

“Due to the unprecedented facts and the variety of legal issues that would be addressed in this case, the office was aware that the case would involve litigation risks, as would any case of this scope and complexity,” Smith wrote.

“However, after an exhaustive and detailed review of the law, the office concluded that the charges were well supported and would survive any legal challenge absent a change in the law as it existed at the time of the charges,” he added.

But the law changed. Slowly. And in Trump’s favor.

Smith had tried to speed things up, asking the Supreme Court in December 2023 to step in and consider the issue of presidential immunity.

However, the court was not in a hurry. It denied the request, waited for an appeals court ruling (which Trump lost) and didn’t hear oral arguments in the case until April. When the court’s conservative majority said in July that presidents enjoyed broad immunity for their official actions in the White House, it wasn’t until August that the special counsel could try again with a superseding indictment that limited the evidence Smith could use.

Unsaid by Smith: Three of the justices in the 6-3 majority were appointed by Trump during the same term for which he now enjoyed immunity.

Trump was also able to use the immunity ruling to delay sentencing before the presidential election after being convicted in New York on fraud charges related to hush money payments to adult film star Stormy Daniels.

Smith said his office would not have charged Trump if he was simply exercising his free speech by engaging in “exaggeration or crude politics.”

Trump and the unindicted co-conspirators in the case “went far beyond speaking their mind or contesting the election results through our legal system,” Smith said of the effort to overturn Joe Biden’s election victory.

Over the course of more than 20 pages, Smith explained why he believed the unprecedented prosecution was warranted and that there was no alternative, citing the need to “protect the integrity of America’s election process” and “the federal interests that defend against future damage to America’s exceptional tradition of peaceful transitions of presidential power.”

Impeachment — even if Trump had been convicted by the Senate — is a political process, not a legal one, Smith wrote. Trump was impeached for his role in inciting the riot on January 6, 2021, but was acquitted by the Senate.

“Thus, even if Mr. Trump had been convicted by the Senate, political accountability in the form of impeachment would not have been a sufficient alternative to criminal accountability, particularly given the magnitude of Mr. Trump’s offenses and the substantial federal interests they targeted,” says the report.

The special counsel noted that more than 1,500 people have been charged for their actions at the U.S. Capitol on Jan. 6, so Trump should not have been off the hook: “Mr. Trump’s relative culpability weighed heavily in favor of indicting him, as the person most responsible for what happened at the Capitol on January 6.”

Nevertheless, there are others who will also avoid federal charges thanks to Trump’s victory: the unindicted co-conspirators. At least one subject of the investigation, who was not named, may have committed unrelated crimes, and that person was referred to a U.S. attorney’s office, according to the report.

Smith’s report has an entire section considering how the Justice Department should approach investigations in election years, something that has been a constant source of controversy, especially in the last decade.

He stated that given the timing of the investigation and Trump’s simultaneous re-election bid, the former president’s “actions would be criticized by one constituency or the other regardless of which way the investigations went.”

The special counsel said he leaned on DOJ policy and his own experience in the department’s criminal division’s public integrity section and moved “quickly.” DOJ policy is not to file charges in the months before an election, he wrote, but that does not apply to cases already in court, as his was.

“Whether in an election year or at any other time, prosecutors’ duty after indictment is to prosecute their cases fully and zealously,” the report states.

Smith essentially gives future prosecutors a road map. There has never been such a full articulation of this, especially not in writing, so what Smith and his team wrote here is likely to be relatively important in future elections.

Smith had choice words for Trump’s lawyers, saying they peddled “a series of false, misleading or otherwise unsubstantiated allegations” to attack the integrity of his impeachment and investigation.

This searing rebuke is all the more remarkable when you consider that one of the people Smith criticized was Trump’s lawyer Todd Blanche, the president-elect’s pick to serve as deputy attorney general. It is not out of the question that Blanche, in that role, could help oversee special counsel investigations in the future.

Smith’s denunciations came in a letter to Garland on Jan. 7 and were published in the report. Smith sent the letter last week in response to a vicious letter from Trump’s team, arguing that the report should never be released because he is an “out of control private citizen unconstitutionally posing as a prosecutor.”

It is all the more jarring to see Smith condemning the incoming president’s lawyers on the same day that a separate counsel also denounced the outgoing president.

Special counsel David Weiss, who investigated and successfully prosecuted Hunter Biden, said in his own final report Monday that President Joe Biden made “false” and “incorrect” allegations about the investigation to justify pardoning his son. (Biden had said the investigation was unfair and tainted by politics.)

But here is the reality: For the first time since 2016, there are no active special advisers in the Ministry of Justice. The eight-year saga of seemingly endless major investigations is over – for now.