Jack Smith’s Testimony and the Republican Efforts to Rewrite History
"I'm not going to be intimidated"
Yesterday former Special Counsel Jack Smith testified at a public hearing before the House Judiciary Committee. As I discussed in this recent post, Smith gave a closed-door deposition to the same Committee last month but had always sought the opportunity to testify publicly. It may seem surprising that the Republican leadership offered Smith the chance to recount his findings in the two federal criminal prosecutions of Donald Trump. But the hearing was less about exploring Trump’s alleged criminal activity and more about Republican efforts to help Trump rewrite history.
Ranking Member Jamie Raskin (D-MD) opened his remarks by saying he was grateful Smith had finally gotten the same opportunity as other Special Counsels to discuss his findings in a public hearing. But that wasn’t entirely accurate; Smith was not being treated like other Special Counsels. The hearing was called as part of a Committee investigation not into Donald Trump but into the alleged weaponization of the Justice Department by the Biden administration. The Republican majority’s goal was not to allow Smith to present his findings but to attack his investigation.
House Judiciary Chairman Jim Jordan at yesterday’s hearing (Kevin Dietsch/Getty Images)
Investigating the Investigators
As I noted in my earlier post, Republicans undoubtedly felt they had to hold a hearing to demonstrate they were going after Smith to appease Trump, who has repeatedly called Smith a “deranged” prosecutor who should be thrown in jail. But they also know it is not really in their interest to have the country reminded about Trump’s conspiracy to overturn the 2020 election, the January 6 riot at the Capitol by his supporters, Trump’s lawless retention and reckless handling of classified materials, and his efforts to obstruct justice.
So Republicans did their best to direct attention away from Trump’s crimes by attacking the prosecutor. Committee Chairman Jim Jordan (R-OH) opened his remarks by claiming Smith’s prosecutions were “always about politics” and that Smith’s goal was to “get President Trump.” He portrayed Smith’s cases as part of a ten-year history of meritless Democratic attacks on Trump, reciting a litany that included James Comey, the Mueller investigation, both impeachments, and the Georgia and New York state prosecutions.
Similarly, during their questioning, Republicans focused on almost anything other than the facts of the criminal cases. As they did during the deposition, they attacked Smith for obtaining the phone records of Republican Members of Congress and claimed he had “spied” on them; suggested Smith was not properly appointed; claimed Trump’s efforts to overturn the election were protected by the First Amendment; and argued about whether the testimony of a single witness, Cassidy Hutchinson, might have been hearsay. (The attacks on Hutchinson were particularly flailing, since there was no indication she was important to Smith’s indictment or that he would have called her as a trial witness.)
Republican efforts to avoid discussing the substance of Trump’s crimes again got an assist from Judge Aileen Cannon, the Trump-appointed judge who presided over his Florida prosecution. Cannon has kept Smith’s report about the classified documents case under seal for the past year, and Trump is now seeking to make that order permanent. Accordingly, as was true in the deposition, Smith was not allowed to reveal anything in Volume 2 of his report discussing the Florida case. The extremely damaging facts concerning classified documents strewn around a Mar-a-Lago bathroom and ballroom and Trump’s efforts to obstruct the investigation were not discussed.
Overall, the Republican approach to the hearing can best be summed up as: “OK, so maybe Trump tried to overturn the election, caused the riot at the Capitol, mishandled hundreds of classified documents, and tried to obstruct justice. But can we just talk for a minute about how you had the nerve to subpoena our phone records?”
As I discussed in greater detail in the earlier post, the phone records that have the Republicans in such high dudgeon were toll records that list calls made and received from a phone and the length of the call. They do not reveal the substance of any conversations. As Smith testified, obtaining those records was standard investigative practice and his team followed all relevant DOJ rules and legal requirements to obtain them.
It’s not hard to see why Republicans wanted to change the subject. Smith testified that his investigation “developed proof beyond a reasonable doubt that President Trump engaged in criminal activity.” He calmly and repeatedly affirmed the strength of his cases and his team’s readiness to prove the charges in court beyond a reasonable doubt. He forcefully rejected Republican suggestions that he was politically motivated or working at the direction of the Biden White House: “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.”
Rewriting History
When it comes to the merits of his prosecutions, Republicans once again didn’t lay a glove on Smith. The hearing didn’t reveal any new bombshells or undermine the strength of his cases in any way. But shedding additional light on the truth about Trump’s criminal conduct was never why Republicans called him to testify.
Since shortly after it happened, Trump has been trying to rewrite the history of January 6. He continues to push the “Big Lie” that the 2020 election was stolen from him. He claims the riot at the Capitol was no big deal and that the criminal cases against him were political witch hunts. One of the latest and most outrageous examples of this Presidential gaslighting is an official White House website regarding January 6 that contains nothing but proven lies and Trump propaganda – all at taxpayer expense.
This hearing is perhaps best understood as part of that effort to rewrite history by portraying Trump as an innocent victim -- in this case, of a rogue political prosecutor. The problem for Republicans was that their witness didn’t look the part of a villain. To sell Trump’s story they needed to expose Smith as a fire-breathing, over-zealous Inspector Javert -- as “deranged,” as Trump has said scores of times, including during the hearing itself.
In that effort, Republicans failed miserably. Lacking any actual evidence of misconduct or political motivation, they lobbed only accusations and insinuations. Smith was unflappable and did not waiver in his conviction about the righteousness of his cases. He faces a very real personal risk that the Justice Department will follow Trump’s commands and seek to prosecute him, as it has prosecuted other Trump enemies. Despite that danger, Smith calmly testified, “I’m not going to be intimidated.” He appeared about as far from deranged as one can imagine. The same can’t be said for a few of the Republican questioning him.
But in the current political environment, the substance of the hearing probably matters less than simply the fact that it took place. Republicans will use selected snippets to falsely claim on right-wing media that Smith’s prosecution and integrity were destroyed – or DECIMATED, as Trump himself posted on Truth Social in the middle of the hearing. That is all that much of the MAGA universe will see, and it will reinforce the false narrative of Trump as victim. After all, the regime that looks at the videos of the January 6 Capitol riot and claims it shows a peaceful protest by patriots can easily look at the video of the hearing and claim it shows a deranged, political prosecutor. In an administration where facts no longer matter, the hearing probably served its purpose.
For the rest of us, Smith’s testimony served as a reminder not only of the President’s crimes but also of how far the Justice Department has fallen since Trump took office. Republicans cry that Smith was a political actor secretly doing the bidding of President Joe Biden, but they have no evidence of that. Smith repeatedly and credibly testified that not only was it not true, but that taking political direction in a criminal prosecution would have been counter to everything he has done and learned in his 30-year career.
Contrast that with the current Department of Justice, one year into the Trump administration. President Trump publicly demands the investigation and prosecution of his political opponents, and his Justice Department complies. There is no attempt to hide the use of the Justice Department to pursue Trump’s political goals and personal vendettas. While a Congressional Committee supposedly investigates the secret weaponization of the Justice Department under Biden, the true weaponization by the Trump administration is going every day in plain sight.
In his opening statement, Smith testified about his fear that our collective commitment to the rule of law in this country is eroding. The actions of Trump’s Justice Department over the past year, and the spectacle of yesterday’s hearing, suggest that his fear is well-founded. The long, hard task of restoring that commitment and the public’s confidence in the justice system must be an urgent project of the post-Trump era.
Beginning to think that white people keep getting shot in Minneapolis because our white privilege makes us think we are protected by the law. Everything is come undone....