WASHINGTON − Special counsel Jack Smith, whose office indicted President-elect Donald Trump on charges of illegally trying to stay in power after losing the 2020 election, said in a bombshell final report released early Tuesday that he believed his team had amassed enough evidence to convict Trump if the case went to trial.
But Trump’s election to a second term in November made it impossible for the case to go forward, Smith wrote in the 174-page report, which was dated Jan. 7 and addressed to Attorney General Merrick Garland.
“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,” Smith wrote in the report.
“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,” Smith wrote.
Smith also said his team considered bringing an even more serious criminal charge against Trump – a violation of the Insurrection Act – after concluding there were “reasonable arguments that it might apply.”
The Insurrection Act provides that anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto,” could be fined, imprisoned for a maximum of 10 years – and “shall be incapable of holding any office under the United States,” according to the report.
Ultimately, the special counsel’s office opted against bring that or other potential charges.
Trump and his legal team had fought to prevent the release of the report on various grounds, including saying it would interfere with his plans to take office on Jan. 20. But late Monday night, Judge Aileen Cannon in Florida denied Trump’s emergency motion to prevent its release.
Soon after, the Justice Department delivered it to Congress.
The release of the report caps an extraordinary legal saga pitting the Justice Department – and later the special counsel’s office after Trump declared his candidacy – against the former president. Investigators focused on charges that were arguably among the most serious ever levied against an elected official of Trump’s stature, including whether he took steps to essentially try to subvert the will of the voters who elected President Joe Biden in 2020, not Trump.
After Trump won the 2024 election last November, judges dismissed the charges in both cases at Smith’s request, under longstanding Justice Department policy against prosecuting sitting presidents. Special counsels typically write reports explaining what their investigations revealed and the reasoning behind decisions about whether to bring charges.
Trump responded to the report’s release on Truth Social, attacking Smith and the congressional committee that investigated the Jan. 6, 2021 attack on the U.S. Capitol by a mob of Trump supporters.
“Deranged Jack Smith was unable to successfully prosecute the Political Opponent of his ‘boss,’ Crooked Joe Biden, so he ends up writing yet another ‘Report’ based on information that the Unselect Committee of Political Hacks and Thugs ILLEGALLY DESTROYED AND DELETED, because it showed how totally innocent I was, and how completely guilty Nancy Pelosi, and others, were,” Trump wrote. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!”
The fullest description yet of Trump’s alleged 2020 election plot
Smith’s report provides the fullest description yet about the investigation that led to two federal indictments against Trump before both cases were dismissed. Smith’s team previously released a 165-page summary of the election case in October that included revelations such as Trump allegedly saying “so what?” when Vice President Mike Pence had to be taken to a secure location during the Capitol attack on Jan. 6, 2021.
Now Smith has written a final two-volume report, including the newly released volume about how Trump allegedly conspired to overturn the 2020 election. The other volume, which is focused on the former president’s alleged mishandling of classified documents after leaving the White House, has not been released publicly because Trump’s co-defendants still face charges in that case.
In appeals filing, Trump’s lawyers described the report as “nothing less than another attempted political hit job which sole purpose is to disrupt the Presidential transition and undermine President Trump’s exercise of executive power.”
Smith resigned from the Justice Department on Friday. Trump had said he would fire Smith upon assuming office and that Smith “should be in jail.”
Smith makes case for prosecution, arguing Trump fueled Jan. 6 violence
Smith argued in the report that it was important to bring the election-interference prosecution against Trump in order to protect the United States’ electoral process. He alleged that Trump tried to obstruct the country’s system for collecting, counting, and certifying the 2020 election results “through fraud and deceit.”
“Protecting the well-established American tradition of a peaceful transfer of power weighed in favor of prosecution,” Smith wrote.
Smith also defended the prosecution by arguing that Trump endangered the right to vote and have that vote counted. Trump, he said, urged state officials to disregard the true majority of votes in their states, pressured Georgia Secretary of State Brad Raffensperger to “find” more than 11,000 votes, and pushed then-Vice President Mike Pence to throw out the electoral certificates that reflected millions of citizens’ votes.
“An additional factor meriting Mr. Trump’s prosecution therefore was the need to vindicate and protect the voting rights of these and all future voters,” the report states.
Trump also engaged in threats and encouraged violence against those he perceived as his opponents, according to the report, which said 140 law enforcement officers were assaulted on Jan. 6, 2021, with some suffering “significant physical injuries.”
Trump, Smith suggested, had fueled that violence by telling his supporters in a speech that day – ahead of the attack on the Capitol – to go there and “fight like hell.”
“The people who took Mr. Trump at his word formed a massive crowd that broke onto restricted Capitol grounds and into the building, violently attacking law enforcement officers protecting the Capitol and those inside,” Smith wrote.
What were the charges against Trump?
Trump was indicted in Washington, D.C., for allegedly conspiring to overturn the 2020 election with baseless claims of widespread fraud. He was also charged with obstructing Congress from counting Electoral College votes on Jan. 6, 2021, when a riot of his supporters at the Capitol temporarily halted the count.
Trump pleaded not guilty in both cases and maintained his innocence.
“I defeated deranged Jack Smith,” Trump said Tuesday. “We did nothing wrong.”
Trump contends report will perpetuate ‘false and discredited accusations’
Trump asked Garland not to release the report. His lawyers argued the dismissal of charges represented “Trump’s complete exoneration” and that the report would “perpetuate false and discredited accusations.”
Trump joined a court request by his co-defendants in the documents case, Walt Nauta and Carlos De Oliveira, to block its release. Nauta and Carlos De Oliveira argued Smith’s work “promises to be a one-sided, slanted report” that has “a single purpose: convincing the public that everyone Smith charged is guilty of the crimes charged.”
But Garland released the report “in furtherance of the public interest” regarding a “significant matter,” according to department lawyers who fought for its release: Brian Boynton, principal deputy assistant attorney general; Markenzy LaPointe, U.S. attorney in southern Florida; and Mark Freeman, a lawyer in the civil division.
The report doesn’t cover Trump’s other federal case in Florida. Trump was charged with unlawfully retaining national defense documents after leaving the White House at the end of his first administration. FBI agents found more than 100 classified documents during a search of Mar-a-Lago in August 2022.
Garland plans not to release Smith’s volume on classified documents until the charges are resolved against Nauta and De Oliveira. The second volume will be available for review by the top Republican and Democratic lawmakers on the House and Senate Judiciary Committees, government lawyers said.
Clapping back at Trump’s claims of political vendettas
Smith, a former war crimes prosecutor, noted Trump’s attacks on him and his team of prosecutors in a letter to Garland that accompanied the report, in which he disclosed that some of them had been threatened.
“The intense public scrutiny of our Office, threats to their safety, and relentless unfounded attacks on their character and integrity did not deter them from fulfilling their oaths and professional obligations,” Smith said of his team. “These are intensely good people who did hard things well. I will not forget the sacrifices they made and the personal resilience they and their families have shown over the last two years.”
Smith, who insisted on having an extremely low-profile throughout the course of the case, also vehemently denied Trump’s claims that it was politicized.
“While I relied greatly on the counsel, judgment, and advice of our team, I want it to be clear that the ultimate decision to bring charges against Mr. Trump was mine. It is a decision I stand behind fully,” Smith wrote in his letter to Garland.
“It is equally important for me to make clear that nobody within the Department of Justice ever sought to interfere with, or improperly influence, my prosecutorial decision making,” Smith wrote. “And to all who know me well, 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.”
