Former special counsel Jack Smith returned to Capitol Hill on Tuesday to defend his derailed efforts to prosecute President Donald Trump, telling lawmakers he would not “be silenced by continued threats of prosecution” from the president.
Testifying before the Senate Judiciary Committee, Smith rejected Republican assertions that his investigations of the then-former president were driven by partisanship or were used to improperly surveil GOP lawmakers during the Biden administration.
Smith said he stood by his decision to charge Trump in two felony indictments during his years out of office, the first focused on his alleged mishandling of classified documents and the second on his efforts to overturn the results of the 2020 election.
“If asked whether to prosecute a former president today based on the same facts, I would do so regardless of whether the president was a Republican or a Democrat,” Smith said.
With that assertion, the former special counsel kicked off his latest high-stakes public clash with Republican lawmakers amid a fight to control the public’s understanding of Smith’s twin investigations, both of which he was compelled to abandon after Trump won the 2024 election.
The president and his allies for years have asserted that Smith and other prosecutors weaponized law enforcement against them and deserve to be punished. Democrats say Trump plainly committed indictable offenses in taking classified documents to his home and seeking to overturn an election, and that it is he who has corruptly turned the Justice Department into a cudgel to target perceived political foes.
“The aspersions cast on Mr. Smith nonstop are petty, personal and political,” said Sen. Dick Durbin (Illinois), the committee’s top Democrat. “They are nothing but a smoke screen to distract from the president’s own clear unlawful conduct.”
Against that backdrop, Tuesday’s hearing carried the palpable threat that Smith’s testimony could provide fodder to make him the next target of Trump’s Justice Department.
After Smith’s testimony before the House Judiciary Committee earlier this year, committee Chair Jim Jordan (R-Ohio) referred the former special prosecutor to the Justice Department for prosecution, alleging he had lied to Congress. Department officials have said they are reviewing the evidence and have not decided whether to seek a grand jury indictment against Smith.
Separately, federal prosecutors in Florida recently subpoenaed former FBI agents involved in a 2022 raid of Trump’s Mar-a-Lago estate that led to Smith’s classified documents case against Trump. Those interviews are part of a broader “grand conspiracy” probe pursued by the Justice Department under a vague legal theory that Biden and Obama-era officials engaged in a decade-long conspiracy to violate Trump’s civil rights.
Smith said Tuesday he expected the Trump administration to do “everything in its power” to try to build a case against him despite lacking any legitimate basis to do so.
“The rule of law faces challenges unlike any we have experienced in our lifetime,” Smith told the senators. “Individuals are threatened with criminal prosecutions because they are perceived to have opposed the president. Predetermined outcomes increasingly seem to take precedence over the Justice Department’s long-standing core values, traditions and norms.”
Despite those stakes, Smith’s testimony was expected to offer few new insights into his work as special counsel from late 2022 through Trump’s reelection in 2024, which has been dissected in detail in court filings and congressional hearings over the past several years.
Smith said that strict secrecy rules bar him from answering many questions about grand jury interviews or materials. He also said he was limited in what he could discuss about his team’s investigation of Trump’s handling of classified documents because of a court ruling on a final report he drafted summarizing his findings.
U.S. District Judge Aileen M. Cannon, who oversaw that case, permanently barred the report’s release and blocked officials from discussing its contents with those outside the Justice Department.
Republicans on Tuesday returned to several previous lines of attack.
Sen. Chuck Grassley (R-Iowa), chair of the Judiciary Committee, seized on subpoenas that Smith’s team had obtained to secretly review phone records of several GOP lawmakers as part of the investigation into Trump’s actions in the lead-up to the Jan. 6, 2021, attack on the U.S. Capitol — a step the senator described as a “rampant abuse of authority.”
Smith defended those requests, saying the subpoenas were essential to tracking phone calls made from the White House that day to Trump’s allies in Congress as he sought to delay certification of the 2020 election results.
The records included the times and lengths of those phone calls and text messages, but did not disclose the contents of any senators’ communications.
But the Justice Department has since revealed that Smith also obtained the contents of 44 lawmakers’ text messages as part of a separate subpoena to the National Archives and Records Administration seeking the communications of several top Trump aides.
Smith has said Trump is to blame for the need to obtain that information in the first place, given his unprecedented actions as Congress was preparing to certify Joe Biden’s victory in the 2020 election.
But Grassley framed Smith’s investigation as entirely partisan.
“Mr. Smith’s operation was a partisan weapon that broke the rules, lied to the court and engaged in bad faith throughout,” Grassley said. “His operation has no credibility.”
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