A newly released report by special counsel Jack Smith includes findings that may offer some unexpected validation for President-elect Donald Trump.
After a legal battle, the Department of Justice (DOJ) on Tuesday morning released the findings of Smith’s investigation into Trump‘s actions related to the January 6, 2021, U.S. Capitol assault, as well as his efforts to overturn the 2020 election.
Newsweek has contacted Trump’s transition team for comment via email.
Why It Matters
Smith said the overall findings would have led to a conviction. Trump’s critics have said the events of January 6 should have ended his political career, but he has insisted that the accusations were politically motivated and legally unsound.
Trump had sought to block the release of the report, with his lawyers arguing it would illegally interfere with his presidential transition this month.
The DOJ, on the other hand, had been fighting to get the report made public before Trump takes office, since it was highly unlikely Trump would have allowed its release once he was back in the White House.
What To Know
Trump has long maintained his innocence in Smith’s election interference case against him. The report, which was submitted to Congress early Tuesday, says that Smith’s team had enough evidence to prosecute Trump had he not been elected.
“[B]ut 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,” the report says.
Smith added that he believed Trump criminally attempted to subvert the will of the people while trying to overturn the 2020 election results. “As set forth in the original and superseding indictments, when it became clear that Mr. Trump had lost the election and that lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power,” the report says.
The report also includes allegations that Trump sought to pressure Vice President Mike Pence into delaying the vote certification on January 6, 2021, and that he supported recruiting false slates of electors in several states.
Trump and the Insurrection Act
However, while Smith’s report clashes with Trump’s overall narrative, in parts it appears to align with the president-elect’s claims.
For example, the report reveals that prosecutors considered charging Trump with inciting that attack on the U.S. Capitol under a U.S. law known as the Insurrection Act. But Smith’s team ultimately concluded that such a charge posed legal risks because Trump’s actions did not amount to an insurrection because he was already in power when the riot took place and therefore was not attempting to challenge a sitting government.
“In case law interpreting ‘insurrection’ in another context, one court has observed that an insurrection typically involves overthrowing a sitting government, rather than maintaining power, which could pose another challenge to proving beyond a reasonable doubt that Mr. Trump’s conduct on January 6 qualified as an insurrection given that he was the sitting President at that time,” the report says.
It continues: “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.”
Trump and the January 6 Violence
The report also says there was insufficient evidence that Trump intend to cause the “full scope” of violence during the riot.
It says that “the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay. But the Office did not develop 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.”
Nonetheless, Smith stood by his decision to prosecute Trump in the report. “The final decision to prosecute the President-elect was his alone, he wrote. “It is a decision I stand behind fully. To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant.”
The report is likely to have little negative impact on Trump, whose position in the polls increased after he was hit with criminal charges last year. He will become the first convicted felon to serve as president because of his sentencing last week in the New York “hush money” case.
U.S. District Judge Aileen Cannon had barred the DOJ from releasing a final investigative report or any drafts after requests by the [resident-elect and his allies. But on on Monday she allowed Attorney General Merrick Garland to release the first volume of Smith’s report on his election interference investigation.
The second part of the report, related to allegations that Trump unlawfully held on to classified documents after leaving office in 2021 and obstructed the Justice Department’s subsequent investigation, was not released.
Smith stepped down from his position this past Friday after submitting his report to Garland, according to a footnote disclosed by the Justice Department in a court filing over the weekend.
Trump, who was indicted in August 2023 for attempting to overturn the 2020 election results, saw the case delayed by appeals and eventually scaled back significantly. A landmark decision by the conservative-majority Supreme Court grants former presidents broad immunity from criminal prosecution for actions that are considered official duties.
Though Smith sought to salvage the indictment, his team dismissed it entirely in November after Trump won the election, in line with a long-standing DOJ policy not to prosecute a sitting president.
What People Are Saying
Neama Rahmani, president of the West Coast Trial Lawyers, told Newsweek: “Smith always took a cautious approach in charging decisions. He anticipated a potential defense and chose not to charge Trump with insurrection. He took the same approach when he charged Trump in Florida instead of Washington, D.C., in the classified documents case because Trump had a potential venue defense. But because of Smith’s delay and failure to anticipate the real possibility that Trump would be reelected, Smith was never able to get the cases anywhere near trial.”
Rahmani went on: “Though the report gives us insight into Smith’s thinking, it doesn’t provide much in terms of new evidence that hadn’t already been make public in the January 6 Committee report or the superseding indictment. And ultimately the American people did not care that Trump had been charged in these cases, and Trump received more support than he received before the prosecutions.
“There is no chance Trump is impeached with Republicans controlling both houses of Congress, so this is effectively the end of both the classified document and election fraud cases,” Rahmani said.
Trump’s communications director Steven Cheung said in a statement that it was “time for Joe Biden and Merrick Garland to do the right thing and put a final stop to the political weaponization of our justice system.”
In a post on Truth Social, Trump said: “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. 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!!!.”
In a letter to Garland accompanying the report, Smith said: “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.”
What Happens Next
Trump’s inauguration is set for January 20, after which he will begin his second term as president.
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