"Special counsel Jack Smith’s report gives new insights into the investigative process, challenges his team faced and the reasoning that guided their decisions"

 

Smith believes Trump would have been convicted at trial

Smith argues that the only reason Trump didn’t receive a guilty verdict is because he was elected president and the Justice Department had to therefore drop the case. There was no way around department guidance that prevents the prosecution of a sitting president, Smith wrote.

He acknowledged that the Supreme Court decision expanding the scope of presidential immunity forced him to chip away at some allegations in the indictment. But he said prosecutors are nevertheless confident that they had ample evidence to convince a jury that Trump was guilty of the charges he faced.

“While we were not able to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law matters,” Smith wrote in a letter to Attorney General Merrick Garland that accompanied the report. “I believe the example our team set for others to fight for justice without regard for the personal costs matters.”

Prosecutors considered charging Trump with inciting insurrection — but didn’t

When the election-interference indictment was first unsealed in 2023, Smith’s team received criticism from some quarters for not charging Trump with incitement to insurrection — a crime that could have prevented him from again seeking elected office had he been convicted.

In his report, Smith revealed that his team had considered pursuing such a charge and believed they’d amassed some evidence to support it.

They ultimately chose not to, however, deeming such a prosecution too risky and believing the other charges they’d lodged against Trump to be sufficient. The insurrection statute, which dates to the period after the Civil War, had not been used to prosecute anyone in more than 100 years and was untested in modern criminal courts, the report said. Prosecutors would also have had to rely on a novel interpretation of that law to match their accusations against Trump.

“The Office did not find any 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,” the report said.

Smith blames Trump for the deadly Jan. 6, 2021, riot

Prosecutors still blame Trump for the violence at the U.S. Capitol on Jan. 6, 2021. The report details the violence and trauma that law enforcement, lawmakers and staffers endured that day, citing police officers who fought the mob and rioters who were charged and said they stormed the Capitol at Trump’s behest.

“After January 6, when rioters began to face accountability for their unlawful acts at the Capitol, many pointed to Mr. Trump in an attempt to excuse or mitigate their conduct,” the report reads.

“For example, following his arrest on charges stemming from the Capitol siege, rioter Alex Harkrider sought release from pretrial detention by arguing that ‘[l]ike thousands of others [at the Capitol], Mr. Harkrider was responding to the entreaties of the then Commander-in-Chief, former President Donald Trump.’”

Other co-conspirators could have faced charges

Trump’s 2023 indictment described six unnamed co-conspirators — figures such as attorneys Rudy Giuliani, Sidney Powell and John Eastman — and accused them of aiding the defeated president in his efforts to subvert the election results.

In his report Tuesday, the special counsel said his office received an early authorization from the Justice Department to pursue charges against some of those Trump allies but had not made any final decisions before Trump’s election victory in November brought their case to an end.

The alleged co-conspirators could still be prosecuted and would not be shielded under the Justice Department policy that prohibits the prosecution of sitting presidents. However, it is exceedingly unlikely that Trump’s Justice Department — which he hopes will be led by some of the same defense attorneys who defended him in the election-interference case — would choose to pursue charges against anyone based on Smith’s findings.

Smith said his 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.”

Trump’s claims of political bias deemed ‘laughable’

Smith used his report to vigorously defend his team against years of attacks from Trump and his allies, who repeatedly accused prosecutors of political motivations in bringing the case.

“To all who know me well,” Smith wrote in a Jan. 7 letter to Garland that was released with his report, “the claim from Mr. Trump that my decisions as a prosecutor were influenced or directed by the Biden administration or other political actors is, in a word, laughable.”

Until now, the special counsel had remained largely silent in the face of Trump’s broadsides, reserving any response for legal filings and arguments before a judge. However, in his letter to Garland, Smith — a former war crimes and public corruption prosecutor — robustly defended his work.

Trump’s crimes were “unprecedented,” Smith wrote, and prosecuting him for them served the best interests of the nation.

AG Garland rushed to get the report out before he leaves office

Garland appointed three special counsels and released four reports during his tenure. (One, detailing the special counsel’s investigation into President Joe Biden’s son, Hunter, was made public hours before the Smith report posted online.) Garland is considered a cautious and by-the-books attorney general and, before this week, held news conferences announcing the appointment of each of the special counsels and the release of each of their reports.

But with the Smith report, Garland was up against the clock, and he made it public in the middle of the night.

Trump had been trying to convince the courts to block the report’s release, questioning its legitimacy and arguing that it would interfere with his presidential transition. Two courts turned him down.

If a judge or panel of judges had agreed to delay the release any longer — or Trump had pursued other legal avenues — the battle could have pushed past Monday’s inauguration. As soon as a court order that barred the report’s release lapsed, Garland submitted the material to members of Congress and posted it online with little fanfare just before 1 a.m.

A second volume of the report detailing Smith’s findings in Trump’s classified documents case will remain under wraps for now, because of ongoing litigation against Trump’s former co-defendants in the case.

Garland wants to transmit the report to select leaders in Congress if they agree not to make it public, but a judge has blocked him from doing so pending a court hearing Friday. By the time the judge rules, it could be too late for Garland, falling to Trump’s Justice Department to decide what do with the report.

-The Washington Post, Perry Stein and Jeremy Roebuck