WASHINGTON – Less than a week before President-elect Donald Trump is sworn into office, a report from special counsel Jack Smith is refocusing attention on the brazen steps he took to cling to power at the conclusion of his first term.
Those allegations have been well documented through criminal indictments and investigative reports, but the report released early Tuesday offers by far the most detailed explanation of the actions Smith took — and did not take — as well as a steadfast defense against the Republican former president's claims that the prosecution was politically motivated.
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Here are some of the highlights:
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Smith disputes Trump's claim of ‘complete exoneration’
Trump may never face trial in court for his efforts to undo the 2020 election after he lost to Democrat Joe Biden. But, Smith emphatically noted, that does not mean Trump was exonerated.
Weeks after Trump's 2024 presidential win, Smith's team moved to dismiss the case and a separate case charging Trump with mishandling classified documents because of a longstanding Justice Department prohibition against prosecuting a sitting president.
Trump and his lawyers have asserted that that decision proves the cases should never have been brought and that he did nothing wrong. His lawyers said in a letter urging Attorney General Merrick Garland to block the release of the report that Trump had achieved a “complete exoneration.”
But Smith, in his own letter, called that assertion “false” and took pains to note that the dismissal decision was simply a reflection of his team's adherence to Justice Department policy rather than declaration of Trump's innocence. In fact, Smith said, he believes Trump would have been convicted at trial had his 2024 election victory not foreclosed a criminal prosecution.
“As the Office explained in its dismissal motions and in the Report, the Department’s view that the Constitution prohibits Mr. Trump’s indictment and prosecution while he is in office 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 — all of which the Office stands fully behind,” Smith wrote.
In that way, his message echoes that of Robert Mueller, who as a Justice Department special counsel during Trump's first term investigated whether the then-president had obstructed an investigation into Russian election interference. Mueller cited the same Justice Department policy as Smith and, like Smith, made clear that his findings had not exonerated Trump.
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Smith says his team ‘stood up for the rule of law’
For more than two years, Smith stood silent in the face of blistering personal attacks from Trump and allies, who alleged that he was compromised, that he was in cahoots with the Biden White House, that the investigations he was shepherding amounted to political persecution.
In his final public message, Smith responded.
His report, and in particular a letter he addressed to Garland that accompanied the document, amounts to a full-throated defense of his team and its investigative decisions.
The idea that his actions were influenced by anyone in the Biden administration? “Laughable,” Smith wrote. The suggestion that political appointees at the Justice Department meddled with his work? Simply not so, he wrote.
As for the prosecutors who comprised his team: “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. 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.”
The report was released just days before Trump is to take office again, with plans to pardon supporters who stormed the Capitol on Jan. 6, 2021, in a bid to halt the certification of the election results. Trump has sought to rewrite the violent history of that day in remarks as recently as this month, when he said incorrectly that none of the rioters at the Capitol had guns.
“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. “I believe the example our team set for others to fight for justice without regard for the personal costs matters. The facts, as we uncovered them in our investigation and as set forth in my Report, matter.”
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Unanswered questions remain around presidential immunity
The abandoned prosecution leaves unresolved questions around the scope of presidential immunity from criminal charges following the Supreme Court’s landmark ruling last year.
The court’s conservative majority said former presidents have absolute immunity for official acts that fall within their core constitutional duties and are at least presumptively immune from prosecution for all official acts but do not enjoy immunity for unofficial, or private, actions. The Supreme Court sent it back to the trial court to figure out which acts in the indictment could move forward. But the case was dismissed before the trial court could decide that question.
Without that further legal wrangling, questions remain about how the Supreme Court's interpretation would be applied, Smith wrote.
Smith made clear his team takes issue with the Supreme Court’s ruling, which he said put a greater emphasis on “protecting the independence and fearlessness of the President as opposed to the risk that immunity would encourage lawless behavior.”
“While the lower courts and the dissenting Justices placed greater emphasis on rule of law considerations, the majority found that the need for Presidents to act ‘boldly and fearlessly’ in executing their duties of office was of paramount importance,” Smith wrote.
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Why no insurrection charges?
The report provides fresh details about the team's decision-making on what charges to bring — and not to bring.
Smith said his team explored charging Trump with violating the Insurrection Act, under which a person convicted of inciting, assisting or engaging in “any rebellion or insurrection against the authority of the United States” would be barred from holding public office.
Smith noted that while federal judges overseeing the more than 1,500 cases against the rioters who stormed the Capitol have described the violence as an “insurrection,” no one has been charged under that Civil War-era law.
Smith’s team believed it would have been legally risky to bring charges under “this long-dormant statute.” Prosecutors found no prior case against a government official accused of trying to cling to power — “as opposed to overthrowing it or thwarting it from the outside,” Smith said.
Applying the law “in this way would have been a first, which further weighed against charging it, given the other available charges, even if there were reasonable arguments that it might apply,” Smith wrote.
Furthermore, Smith said prosecutors could prove Trump “incited or gave aid and comfort to those who attacked the Capitol,” but they did not have evidence that Trump “directly engaged in insurrection himself.” The only prior cases prosecutors could find under that law were against those who directly engaged in insurrection.
While the evidence showed the “violence was foreseeable” to Trump and that he caused it, prosecutors did not have “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 that occurred on January 6,” Smith wrote.
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The ‘angry mob’
Even if Smith didn't charge Trump with inciting the riot, or with leading an insurrection against the U.S. government, his report nonetheless blames the president-elect for the violence on Jan. 6, 2021.
It accuses him of having directed “ an angry mob to the United States Capitol to obstruct the congressional certification of the presidential election and then leverage rioters’ violence to further delay it.”
The report includes pages of color photographs of the clash outside the Capitol between law enforcement and the rioters and is unsparing in its characterization of the violence, quoting police officers who said they feared they would be killed in the melee as well as rioters who said they went to Washington at Trump's direction.
“'We were invited here! We were invited by the President of the United States!'” the report quotes one rioter as saying. ”Inside, another rioter yelled at officers to ‘stand down. You’re outnumbered. There’s a (expletive) million of us out there. And we’re listening to Trump, your boss.’"
Trump has repeatedly pointed to the fact that he told supporters to march “peacefully and patriotically” to the Capitol that day.