Jack Smith Reminds Us How DOJ Is Supposed to Work

Takeaways from his Congressional testimony

On December 17, former special counsel Jack Smith testified before the House Judiciary Committee. Smith, of course, is the prosecutor responsible for the two federal indictments of Donald Trump, indictments he was compelled to dismiss after Trump won the 2024 election. As further proof that irony is dead in Washington, the committee’s counsel opened by saying Smith’s testimony was part of the committee’s “oversight of the Biden-Harris administration’s weaponization of the Justice Department and its misuse of Federal law enforcement resources for partisan political purposes.”

Smith’s testimony left no doubt that, had the voters not chosen to put Trump back in office, he almost certainly would have been convicted of multiple federal felonies. But as important as Smith’s defense of his prosecutions was his defense of his team and of the Justice Department as it functioned in the pre-Trump era. He provided a stirring defense of the Justice Department we have lost — and that we must reclaim once Trump has left the stage.

Jack Smith(r), with his counsel Peter Koski, during his Congressional testimony

Smith had offered to testify in public and without a subpoena, as past special counsels have done. House Republicans refused and subpoenaed him to testify in a closed-door deposition. They then waited to release the transcript and video of that testimony until New Year’s Eve, when most of the country was checked out and focused on the holidays.

Republicans were in a tough spot. They had to drag Smith before the committee to appease Trump by appearing to investigate the special counsel. But they also knew it wasn’t really in their interest to remind the country about Trump’s conspiracy to overturn the 2020 election, the January 6 riot at the Capitol carried out by his supporters, his theft and careless storage of highly classified materials at Mar-a-Lago, and his efforts to obstruct justice.

During the more than eight hours of Smith’s testimony, Republicans didn’t lay a glove on him. Lacking any actual evidence that Smith had “weaponized” the justice system against Trump, they came armed only with speculations and insinuations. Smith easily swatted those aside. While Democrat Members of the committee were active questioners, Republicans — apart from a handful of questions by Chairman Jim Jordan — largely left the questioning to their counsel, as if wishing it could all be over as soon as possible.

If Republicans were hoping they could trip up the 30-year prosecutor and provide some pretext for Pam Bondi’s Justice Department to indict him, they failed miserably. What they did get was a calm but forceful defense of the Trump prosecutions and a tutorial on how a properly functioning Department of Justice pursues criminal cases.

Here are some key takeaways from Smith’s testimony.

The Strength of Smith’s Cases

It’s not difficult to see why Republicans tried to bury the news of Smith’s testimony in a holiday news dump.

In his opening statement, Smith said:

Our investigation developed proof beyond a reasonable doubt that President Trump engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the lawful transfer of power.

Our investigation also developed powerful evidence that showed that President Trump willfully retained highly classified documents after he left office in January of 2021, storing them at his social club, including in a ballroom and a bathroom. He then repeatedly tried to obstruct justice to conceal his continued retention of those documents.

Most of Smith’s testimony focused on the Washington, D.C. case involving Trump’s efforts to overturn the election. He was not able to say much about the Florida classified documents case – more about that below.

On the D.C. case, Smith recounted how Trump and his allies repeatedly used false claims about fraud to seek to overturn the election results. Trump persisted in those lies even after courts rejected them and some of his own advisors told him they were not true. He pressured various state officials to overturn their election results, based on those false claims. He and his co-conspirators orchestrated slates of fake electors to send false documents to Washington claiming that Trump had won their state.

Smith testified: “the evidence here made clear that President Trump was by a large measure the most culpable and most responsible person in this conspiracy. These crimes were committed for his benefit. The attack that happened at the Capitol . . . does not happen without him. The other co-conspirators were doing this for his benefit.”

When Republican counsel pressed Smith on whether he had evidence that Trump had actually instructed rioters to storm the Capitol, Smith replied:

So our view of the evidence was that he caused it and that he exploited it and that it was foreseeable to him . . .

Our evidence is that he in the weeks leading up to January 6th created a level of distrust. He used that level of distrust to get people to believe fraud claims that weren’t true. He made false statements to State legislatures, to his supporters in all sorts of contexts and was aware in the days leading up to January 6th that his supporters were angry when he invited them and then he directed them to the Capitol.

Now, once they were at the Capitol and once the attack on the Capitol happened, he refused to stop it. He instead issued a tweet that without question in my mind endangered the life of his own Vice President. And when the violence was going on, he had to be pushed repeatedly by his staff members to do anything to quell it.

And then even afterwards he directed co-conspirators to make calls to Members of Congress, people who were his political allies, to further delay the proceedings.

Smith also emphasized that one of the strengths of his case was that most of his key witnesses were Republicans - undermining the claims of a political prosecution. They were people who had voted for Trump and wanted him to succeed, but were not willing to go along with his criminal scheme after he lost the election: “Our case was built on, frankly, Republicans who put their allegiance to the country before the party."

Smith left no doubt about his belief in the strength of his case and the righteousness of the prosecution. If you’d like a refresher on the D.C. case and the charges, you can find that here:

Breaking Down Trump's January 6 Indictment

No Political Influence

Smith forcefully rejected repeated suggestions that his investigations were politically motivated:

I made my decisions in the investigation without regard to President Trump’s political association, activities, beliefs, or candidacy in the 2024 Presidential election. We took our actions based on the facts and the law, the very lessons I learned early in my career as a prosecutor. …

If asked whether to prosecute a former President based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.

Smith testified that he never spoke to president Biden or received any direction from Biden or the White House about the case. In response to suggestions that the goal of his investigation was to make sure Trump lost the election, Smith responded: “I think people who know me and my experience over 30 years would find that laughable.”

The Focus on Toll Records

Smith also rebutted claims that the Justice Department demonstrated political bias by subpoenaing phone records for several Republican Members of Congress. (Some of those subpoenas were issued before Smith was appointed.) Republicans were outraged when this news broke last October, crying that the Biden Justice Department had “spied” on them and falsely claiming that their phones had been “tapped.”

As Smith explained, the toll records that were subpoenaed merely show, after the fact, the numbers called and received by a telephone and the duration of the call. They do not reveal anything about the substance of any conversation. They are thus distinct from a wiretap that intercepts and records conversations in real time; no Members’ phones were tapped.

The evidence showed that as the Capitol riot was taking place, Trump and members of his staff were calling various Republicans to try to persuade them to further delay the count of electoral votes. Smith explained it was important for the investigation to establish a timeline of those calls as potential evidence of Trump’s ongoing efforts to obstruct the proceeding. He rejected Republican claims that the toll records were protected by the Speech or Debate clause of the Constitution, noting that investigators complied with all standard DOJ procedures when obtaining the records.

Given the facts as they unfolded, it would have been investigative malpractice for Smith not to seek the toll records. As for why only the phone records of Republican Members were subpoenaed, Smith had an easy answer: “I did not choose those Members, President Trump did.”

Free Speech Was Not Implicated

Smith also shot down one of the leading alleged defenses of Trump’s actions: that his claims of election fraud were protected by the First Amendment and that the prosecution violated his free speech rights.

Smith noted that the indictment itself specified that Trump was free to claim he won the election, even if he knew that was a lie. What he was not entitled to do was to make knowingly false claims to induce others to act in pursuit of a fraud that would overturn the election and interfere with the lawful transfer of power. “Under Supreme Court precedent,” he said, “fraud is not protected by the First Amendment.”

As Smith noted, nearly all fraud cases involve speech. The con man who persuades his victims to part with their money may do so by speaking, but that speech is not protected by the First Amendment. The same is true here. Trump repeated multiple false claims, even after being shown evidence that they were false, in furtherance of a scheme to defraud the United States. That scheme involved speech, but it is not speech protected by the First Amendment.

(This didn’t come up during the testimony, but it appears to me Smith actually went out of his way to avoid any First Amendment issues. Before the case was indicted there were calls by many, including the House January 6 Committee, to include a charge that Trump incited the riot through his speech on the Ellipse on January 6. Smith, I think wisely, chose to avoid that charge, which would have focused almost exclusively on Trump’s political speech. As I argued here, I think prosecutors ultimately could have won a legal fight over whether that speech was protected by the First Amendment. But Smith didn’t need the charge and wisely just took it off the table, to avoid giving ammunition to those who would inevitably claim he was prosecuting political speech.)

Smith Was Muzzled Regarding the Florida Case

As I noted above, Smith was not able to say much about the Florida case charging Trump with improperly retaining classified documents and obstruction of justice. That’s because the judge in that case, Aileen Cannon, has ordered that Volume Two of Smith’s report, which deals with the Florida case, must remain under seal.

Keeping Volume Two confidential made sense while Trump’s co-conspirators were still under indictment. But those indictments were dismissed shortly after Trump was sworn in, and at that point there was no reason not to release the report. As Democratic counsel noted at the start of Smith’s testimony, ​​”there is no reason at all to continue to keep Volume Two under seal -- besides, of course, the fact that Mr. Trump doesn’t like what it says.”

Public interest groups moved almost a year ago to have the report released. But in her latest act of fealty to Trump, Judge Cannon sat on that motion and refused to act. Finally, in a rare move, the 11th Circuit ordered her to decide the motion and gave her a deadline of January 2, 2026.

On December 22 (a week after Smith’s testimony) Cannon finally cleared the way for the Justice Department to release the report, but stayed her order for 60 days to give Trump a chance to appeal. Even if they don’t appeal, under the Special Counsel regulations it is up to Attorney General Bondi to decide whether to make the report public — so we will see how that goes.

Before Smith testified, the Justice Department emailed his attorneys to confirm its view that Cannon’s order meant Smith could not discuss any non-public information about the Florida case. Smith was understandably very careful to avoid stepping over that line, which could result in his being accused of violating Cannon’s order. So, while insisting that Smith testify about his investigations, Republicans also made sure it was impossible for him to say anything new about Florida that might embarrass the president.

Nevertheless, relying only on the indictment and other public records, Smith was able to describe how Trump wrongfully retained hundreds of classified documents and had them strewn around non-secure spaces at Mar-a-Lago. He also testified how the evidence showed that Trump and his co-conspirators concealed documents after they were subpoenaed, lied about it, and tried to delete the video surveillance footage that recorded their actions.

At one point, Republican counsel tried to suggest the documents were not really at risk at Mar-a-Lago because it was a private club that had Secret Service protection: “I mean, a person can’t just walk into Mar-a-Lago and try to abscond with these materials, right?” Smith responded: “I would very much like to answer that question, but I cannot answer that question due to the final report [being under seal].” This tantalizing response suggests that when we do finally see the report, it’s going to contain evidence that unauthorized individuals did indeed access classified materials at Trump’s resort.

If you want a refresher on the Florida indictment and charges, you can find it here:

Unpacking the Florida Trump Indictment

The Harm Being Done to the Justice Department

Smith said he had wanted to testify publicly because he was proud of the investigations and the work of his team. He wanted to speak up for them and respond to all the false attacks directed at them. “I am both saddened and angered that President Trump has sought revenge against career prosecutors, FBI agents, and support staff simply for doing their jobs and for having worked on those cases. These dedicated public servants are the best of us, and they have been wrongly vilified and improperly dismissed from their jobs.”

But as Smith warned, the damage being done to the Justice Department goes far beyond Trump’s personal vendettas. The Trump administration is dismantling a prosecutorial culture that has been built up over decades. That was the culture that produced career professionals like Smith: a culture where the prosecutor strives to do the right thing for the right reasons, following the facts and law without regard to politics. The purges at Trump’s Justice Department send a clear, and chilling, message: what is required now is not devotion to the rule of law and the Constitution but devotion to Donald Trump.

As a close observer of Smith’s investigations and prosecutions from the beginning, it was always clear to me they were being carried out in the best tradition of the Department of Justice, under extremely difficult circumstances. His report and now his testimony confirm that. But one year into Trump’s second term, the public can have no confidence that this Justice Department has either the willingness or the ability to act with that same integrity.

When you staff the Justice Department with inexperienced and unqualified people who do not share a commitment to DOJ’s traditional values, you erode not only the quality of the work but also the public’s faith in the justice system. Prosecution comes to be seen as simply a political weapon, as it is in authoritarian regimes. We have already seen that happen, with Trump’s DOJ targeting his political foes with flimsy, baseless prosecutions that often quickly fall apart. (With Trump repeatedly attacking him and calling for his prosecution, Smith himself is in danger of facing similar retribution. He acknowledged that he is “eyes wide open” about that prospect.)

This damage will endure long after Trump is gone. As Smith observed, “when you fire people who are career public servants serving both parties over many decades, you . . . lose the expertise about how to do the job properly. And that has an effect on the Department today, and it will have an effect on the Department for some time, if those people aren’t there to be leaders and to teach young lawyers how to be public servants.”

As Smith said about his former colleagues who have been wrongfully terminated: “These are not partisans. They’re people who have decided they don’t want to make a lot of money. They’re not looking for fame. They just want to do good work, and I think when you lose that culture, you lose a lot.”

How DOJ Is Supposed to Work

Smith’s testimony was a breath of fresh air. It highlighted how the Justice Department worked in the pre-Trump era, when investigations were driven by the facts and the law and politics was not allowed to play any role. For former prosecutors like me, it was gratifying to hear someone forcefully articulate the principles that always guided us and that are sorely lacking in the current Justice Department.

The MAGA world and other partisans will no doubt scoff and reject Smith’s testimony that he was not a political actor. But for me, and I’m sure for countless others who have worked as federal prosecutors, his testimony resonated: yes, that’s the job. That’s how you do the work.

But Smith’s testimony was also a sobering reminder of what we have lost in the past year. The long, difficult task of the post-Trump era will be to rebuild the proper prosecutorial culture at the Justice Department and restore the public’s faith in a justice system governed by the rule of law. Jack Smith’s career, and his work as special counsel, provide a model for us to follow.