Jack Smith defends move to seek criminal charges for Trump’s effort to overturn 2020 election

Jack Smith, the former special counsel, has defended his decision to seek criminal charges against Donald Trump for his efforts to overturn the 2020 election in his first and perhaps only public appearance to discuss the cases after they were dropped last year.

“No one should be above the law in this country, and the law required that he be held to account,” Smith said in his opening remarks before the House judiciary committee. “So that is what I did.”

Smith’s appearance came with the risk of Trump and his allies on Capitol Hill poised to seize on any admissions or misstatements that could be used as a basis to refer him for investigation by the justice department, which Trump has demanded for years.

At the same time, the public hearing provided an opportunity for Smith to rebut accusations from Republicans that he had been motivated by partisan politics when he indicted Trump, and to deliver a sober recitation of Trump’s conduct that formed the backbone of the criminal cases.

Smith was appointed in late 2022 to oversee two criminal investigations into Trump that had begun at the justice department before his arrival: Trump’s retention of classified documents at his Mar-a-Lago club, and his alleged push to overturn the results of the 2020 election.

The cases were dropped after Trump was elected to a second term, with Smith citing judicial precedents that prevented prosecutions against a sitting president. He instead completed reports into both cases before resigning from his position before Trump took office.

Republicans on the judiciary committee were particularly focused on Smith obtaining the so-called toll records of phone calls between Trump and the White House and members of Congress, who supported Trump’s efforts to overturn the results of the 2020 election.

Toll records do not contain the content of the conversations, but Republicans portrayed Smith’s move to obtain the records – and get a gag order to prevent targeted lawmakers from being notified – as spying on Trump.

Smith defended the move as necessary to build a timeline of Trump’s efforts to enlist those Republican lawmakers to block the certification of the election results in Congress on 6 January 2021, as well as to not tip his hand during the investigation.

“The subpoenas that we secured, we secured with non-disclosure orders from a judge, because I had grave concerns about obstruction of justice in this investigation, specifically with regards to Donald Trump,” Smith said.

Smith did not directly address the technical point that obtaining toll records of lawmakers risked violating the speech or debate clause in the constitution, and that obtaining a gag order meant there was no way for them to challenge him in court.

But despite Republicans’ focus on the toll records, the metadata of the phone calls ultimately played a vanishingly small role in the election interference case, and was unlikely to have offered Trump even a procedural defense had the case gone to trial.

Smith testified that he opted not to charge Trump with insurrection but, in remarks that at times resembled the kind of closing arguments he might have made at trial, asserted that the Capitol riot was principally the fault of the president.

“Our assessment of the evidence is that he is the person most responsible for what happened on January 6. He caused what happened. It was foreseeable to him, and then when it happened, he tried to exploit it in furtherance of the conspiracy,” Smith said.

At other times, Republicans berated Smith for what they characterized as an attempt to weaponize the justice department to destroy Trump and his re-election campaign.

“Maybe they’re not your political enemies, but they sure as hell were Joe Biden’s political enemies, weren’t they? They were Harris’s political enemies,” Darrell Issa, a Republican congressman, said. “They were the enemies of the president. And you were their arm, weren’t you?”

“No,” Smith responded, later adding that he was never ordered by Biden or Merrick Garland, then the attorney general, to bring charges against Trump.

Trump has repeatedly called for Smith to be prosecuted for investigating him, but there did not appear to be a clear avenue or misstatement from Smith that could form the basis of a criminal referral to the justice department.

Lanny Breuer, the lawyer representing Smith, earlier said his client welcomed the opportunity to publicly defend the investigations into Trump.

“Jack has been clear for months [that] he is ready and willing to answer questions in a public hearing about his investigations into President Trump’s alleged unlawful efforts to overturn the 2020 election and his mishandling of classified documents,” Breuer said.

The hearing followed a closed-door interview last month that lasted for more than eight hours, where he largely repeated the same arguments he had made previously.

Most of the December interview focused on the election interference case, after Smith declined to answer questions about the documents case on grounds that Aileen Cannon, the US district judge in Florida appointed by Trump who dismissed the case, also blocked the release of Smith’s report.