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| Trump supporters take over part of the U.S. Capitol (Getty) |
Special Counsel Jack Smith, in his final report on the investigation of Donald Trump's election-interference case related to Jan. 6, 2021, said he considered bringing a charge under the Insurrection Act that could have brought a maximum prison sentence of 10 years and would have disqualified Trump from ever holding any office under the federal government.
Smith also said a major challenge during the investigation was persistent threats against witnesses from Trump and his allies. That, of course, raises this question: Why weren't Trump and his associates charged with witness tampering? Is that another case of the justice system letting them off the hook on a viable charge?
In a joint report at USA TODAY and the Microsoft Network (MSN), Smith consistently used language alleging that Trump acted outside the rule of law, with fraudulent intent. Smith makes it clear that he and his team could have achieved a conviction if their efforts had not been short-circuited under Department of Justice (DOJ) policy that forbids pursuing criminal actions against a sitting president -- and Trump is to be inaugurated on Jan. 20. Once Trump "won" the election on Nov. 5, 2024, Smith faced an insurmountable barrier to pursuing a prosecution. Note: I use quotation marks around the word "won" because substantial evidence points to the election being hacked to benefit Trump and steal it from Democrat Kamala Harris. A Nov. 28 post here at Legal Schnauzer provides background on the election-theft issue. In short, the focus of Smith's report might be a man who did not actually win the election, meaning the U.S. could be set to inaugurate an imposter on Jan. 20:
Several news outlets -- including Newsweek, The Economic Times, and the New York Post are reporting that the Kamala Harris campaign team is preparing a fund to pay for a hand recount in the 2024 presidential election. The news indicates Harris is ready to join an effort, led by U.S. election- and computer-security expert Stephen Spoonamore, which is attempting to determine if Harris actually won a contest that was awarded to Donald Trump, even though Spoonamore and his team say the election appears to have been maliciously hacked to benefit Trump. In short, the Spoonamore group is trying to determine who actually won the election and should be installed as America's next president, given signs the election was "willfully compromised."
Trump did not achieve a majority of the vote, but if the count is accurate, enough Americans went to the polls and voted for Trump -- despite his status as a convicted felon, adjudicated rapist, admitted sexual abuser (caught discussing the issue on video), and serial cheater on his wives, including bedding down a porn star while wife Melania was home tending to an infant -- that, for now, he appears to be a winner. That suggests large numbers of Americans do not recognize a despicable, unfit person when they see one -- and that could be a huge problem for our country. It also is a post for another day.
How close was the 2024 race? Here is how we summarized the popular vote in a post dated Jan. 7, 2025:
As for Trump's "mandate," it turned out to be weak. He received 77,284,118 votes for 49.8 percent -- or less than 50 percent of the vote. Kamala Harris won 74,999,166 votes for 48.3 percent. Trump's margin of victory was 1.5 percent.
Excluding Trump's 46.2 percent in 2016, you have to go back to Grover Cleveland's 46.1 percent in 1892 (124 years) to reach such a low margin of victory. A "commanding victory"? Not even by Grover Cleveland's standards.
Trump repeatedly has referred to his victory as a "landslide," when he won by a whopping 1.5 percent. This is a fundamentally dishonest man, who in my view, resorts to lies and bullying because he simply cannot tell the truth. That is a theme that runs through Jack Smith's report, as the USA TODAY/MSN article makes clear. Write reporters
Special counsel Jack Smith, whose office indicted President-elect Donald Trump on charges of illegally trying to stay in power after losing the 2020 election, said in a bombshell final report released early Tuesday that he believed his team had amassed enough evidence to convict Trump if the case went to trial.
But Trump's election to a second term in November made it impossible for the case to go forward, Smith wrote in the 174-page report, which was dated Jan. 7 and addressed to Attorney General Merrick Garland. "The Department's view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Office stands fully behind," Smith wrote in the report.
"Indeed, but 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," Smith wrote.
What about the charge Smith considered bringing under the Insurrection Act? The USA TODAY team writes:
Smith also said his team considered bringing an even more serious criminal charge against Trump – a violation of the Insurrection Act – after concluding there were "reasonable arguments that it might apply."
The Insurrection Act provides that anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto,” could be fined, imprisoned for a maximum of 10 years – and “shall be incapable of holding any office under the United States,” according to the report.
Ultimately, the special counsel’s office opted against bringing that or other potential charges.
Trump and his legal team had fought to prevent the release of the report on various grounds, including saying it would interfere with his plans to take office on Jan. 20. But late Monday night, Judge Aileen Cannon in Florida denied Trump's emergency motion to prevent its release.
Soon after, the Justice Department delivered it to Congress.
The release of the report caps an extraordinary legal saga pitting the Justice Department – and later the special counsel’s office after Trump declared his candidacy – against the former president. Investigators focused on charges that were arguably among the most serious ever levied against an elected official of Trump’s stature, including whether he took steps to essentially try to subvert the will of the voters who elected President Joe Biden in 2020, not Trump.
After Trump won the 2024 election last November, judges dismissed the charges in both cases at Smith's request, under longstanding Justice Department policy against prosecuting sitting presidents. Special counsels typically write reports explaining what their investigations revealed and the reasoning behind decisions about whether to bring charges.
Trump responded to the report's release on Truth Social, attacking Smith and the congressional committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol by a mob of Trump supporters:
"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," Trump wrote. "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!!!"
Trump's lawyers were allowed to read the report before its release. In an exchange of letters, Trump's lawyers called it a “lawless publicity stunt” and Smith replied that they failed to dispute any facts in the report.
Trump has argued Garland appointed Smith illegitimately, which was why Judge Cannon dismissed the classified documents case. Smith had appealed her ruling, but withdrew it after Trump’s election.
Trump’s lawyers argued Smith “pillaged” the government for more than $20 million for the investigation they called "politically-motivated work.”
“Finally, the release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt, designed to politically harm President Trump and justify the huge sums of taxpayer money Smith unconstitutionally spent on his failed and dismissed cases,” Trump’s lawyers Todd Blanche, Emil Bove, John Lauro and Gregory Singer wrote.
Smith replied that Trump basically objected to releasing the report rather than anything in it, while making “a variety of false, misleading, or otherwise unfounded claims.”
“That response fails to identify any specific factual objections to the draft,” Smith wrote.
Smith suggests that witness tampering was rampant throughout the probe, presenting a constant challenge for his team. Does this suggest America has a glorified thug set to enter the White House, one who can't, or won't, control the MAGA thugs who support him? It sure does. From USA TODAY:
“A significant challenge” Smith said he faced in prosecuting the case was dealing with the “threats and harassment” against witnesses, the judge and Justice Department staffers and that would follow Trump's posts on social media.
Trump acknowledged after the Jan. 6 attack that his supporters listen to him “like no one else.”
The pattern began when Trump would attack and seek to influence state and federal officials with false claims the 2020 election had been stolen. One unnamed witness reported “specific and graphic threats about his family” and a public official required additional police protection after Trump’s posts.
“After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed,” Smith wrote.
The day after his arraignment, Trump posted on social media: "IF YOU GO AFTER ME, I'M COMING AFTER YOU!"
The next day, one of his supporters called U.S. District Judge Tanya Chutkan’s chambers and called her a racial epithet. “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly,” the caller said. “You will be targeted personally, publicly, your family, all of it.”
“Those attacks had ‘real-time, real-world consequences,’ exposing ‘those on the receiving end’ to ‘a torrent of threats and intimidation’ and turning their lives ‘upside down,’” Smith wrote.
Smith's report provides the fullest description yet about the investigation that led to two federal indictments against Trump before both cases were dismissed. Smith's team previously released a 165-page summary of the election case in October that included revelations such as Trump allegedly saying "so what?" when Vice President Mike Pence had to be taken to a secure location during the Capitol attack on Jan. 6, 2021.
Now Smith has written a final two-volume report, including the newly released volume about how Trump allegedly conspired to overturn the 2020 election. The other volume, which is focused on the former president’s alleged mishandling of classified documents after leaving the White House, has not been released publicly because Trump's co-defendants still face charges in that case.
In an appeals filing, Trump's lawyers described the report as “nothing less than another attempted political hit job which sole purpose is to disrupt the Presidential transition and undermine President Trump’s exercise of executive power.”
Smith resigned from the Justice Department on Friday. Trump had said he would fire Smith upon assuming office and that Smith "should be in jail."
Smith argued in the report that it was important to bring the election-interference prosecution against Trump in order to protect the United States' electoral process. He alleged that Trump tried to obstruct the country's system for collecting, counting, and certifying the 2020 election results "through fraud and deceit."
"Protecting the well-established American tradition of a peaceful transfer of power weighed in favor of prosecution," Smith wrote.
Smith also defended the prosecution by arguing that Trump endangered the right to vote and have that vote counted. Trump, he said, urged state officials to disregard the true majority of votes in their states, pressured Georgia Secretary of State Brad Raffensperger to "find" more than 11,000 votes, and pushed then-Vice President Mike Pence to throw out the electoral certificates that reflected millions of citizens' votes.
"An additional factor meriting Mr. Trump's prosecution therefore was the need to vindicate and protect the voting rights of these and all future voters," the report states.
Trump also engaged in threats and encouraged violence against those he perceived as his opponents, according to the report, which said 140 law enforcement officers were assaulted on Jan. 6, 2021, with some suffering "significant physical injuries."
Trump, Smith suggested, had fueled that violence by telling his supporters in a speech that day – ahead of the attack on the Capitol – to go there and "fight like hell."
"The people who took Mr. Trump at his word formed a massive crowd that broke onto restricted Capitol grounds and into the building, violently attacking law enforcement officers protecting the Capitol and those inside," Smith wrote.
Trump was indicted in Washington, D.C., for allegedly conspiring to overturn the 2020 election with baseless claims of widespread fraud. He was also charged with obstructing Congress from counting Electoral College votes on Jan. 6, 2021, when a riot of his supporters at the Capitol temporarily halted the count.
Trump pleaded not guilty in both cases and maintained his innocence.
“I defeated deranged Jack Smith," Trump said Tuesday. “We did nothing wrong."
Trump asked Garland not to release the report. His lawyers argued the dismissal of charges represented “Trump’s complete exoneration" and that the report would “perpetuate false and discredited accusations.”
Trump joined a court request by his co-defendants in the documents case, Walt Nauta and Carlos De Oliveira, to block its release. Nauta and Carlos De Oliveira argued Smith's work “promises to be a one-sided, slanted report” that has “a single purpose: convincing the public that everyone Smith charged is guilty of the crimes charged."
But Garland released the report "in furtherance of the public interest" regarding a "significant matter," according to department lawyers who fought for its release: Brian Boynton, principal deputy assistant attorney general; Markenzy LaPointe, U.S. attorney in southern Florida; and Mark Freeman, a lawyer in the civil division.
The report doesn't cover Trump's other federal case in Florida. Trump was charged with unlawfully retaining national defense documents after leaving the White House at the end of his first administration. FBI agents found more than 100 classified documents during a search of Mar-a-Lago in August 2022.
Garland plans not to release Smith's volume on classified documents until the charges are resolved against Nauta and De Oliveira. The second volume will be available for review by the top Republican and Democratic lawmakers on the House and Senate Judiciary Committees, government lawyers said.
Trump joined a court request by his co-defendants in the documents case, Walt Nauta and Carlos De Oliveira, to block its release. Nauta and Carlos De Oliveira argued Smith's work “promises to be a one-sided, slanted report” that has “a single purpose: convincing the public that everyone Smith charged is guilty of the crimes charged."
Smith, a former war crimes prosecutor, noted Trump's attacks on him and his team of prosecutors in a letter to Garland that accompanied the report, in which he disclosed that some of them had been threatened.
“The intense public scrutiny of our Office, threats to their safety, and relentless unfounded attacks on their character and integrity did not deter them from fulfilling their oaths and professional obligations,” Smith said of his team. “These are intensely good people who did hard things well. I will not forget the sacrifices they made and the personal resilience they and their families have shown over the last two years.”
Smith, who insisted on having an extremely low-profile throughout the course of the case, also vehemently denied Trump’s claims that it was politicized.
“While I relied greatly on the counsel, judgment, and advice of our team, I want it to be clear that the ultimate decision to bring charges against Mr. Trump was mine. It is a decision I stand behind fully,” Smith wrote in his letter to Garland.
“It is equally important for me to make clear that nobody within the Department of Justice ever sought to interfere with, or improperly influence, my prosecutorial decision making,” Smith wrote. “And 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.”
You can read the full Smith Report at the following link.
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