Jack Smith’s Honorable but Frustrating Journey to Prosecute Trump; January 2025

Civil Rights Policy Brief #234 | By: Rod Maggay | Submitted: January 17, 2024

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Policy Summary: Per Department of Justice (DOJ) regulations, Special Prosecutor Jack Smith issued two final reports to Attorney General Merrick Garland. The reports were regarding two federal cases that the Special Prosecutor was pursuing – one in South Florida regarding Mr. Trump’s mishandling of classified documents and a second one in Washington, D.C. accusing Mr. Trump of election interference in the 2020 election.

Despite facing criminal charges in these two  trials, Donald Trump won the 2020 presidential election. As a result of his win and his return to the White House in January 2025, Special Prosecutor Jack Smith made the decision to wind down the two criminal cases and voluntarily dismiss the cases before the cases would come up for trial. On January 10, 2025, Jack Smith resigned from the position of Special Prosecutor with the DOJ. But before he departed, he submitted to Attorney General Merrick Garland two final reports on his investigations. The report on the classified documents case was split in two – one detailing the evidence against Donald Trump and a second one detailing the evidence against two other men who were charged with Mr. Trump in that case. Because the two other men – Walt Natua and Carlos de Oliviera – are still facing ongoing prosecution in the case, AG Garland has decided not to release the final report regarding that case. However, the final report about the investigation into Mr. Trump’s election interference case was eventually released prior to Mr. Trump’s inauguration. LEARN MORE

 

Policy Analysis: The resignation of Jack Smith marks the end of a journey that could be deemed as incomplete. For the last two years, Jack Smith and his prosecutorial team investigated the events of President Trump’s efforts to interfere in the 2020 presidential election. They pursued the facts and researched the law. Yet the election interference case (and the classified documents case) never made it to trial. It would be very easy to assume that this did not happen because Mr. Trump was not responsible or guilty of trying to interfere in the election. That was not the case. Jack Smith made sure to state when he resigned that Mr. Trump engaged in an “unprecedented criminal effort” to overturn his 2020 election loss to Joe Biden. Additionally, Jack Smith stated that the evidence was there to convict Donald Trump. The only reason why the trials did not go forth was because of DOJ policy that prohibits prosecuting a sitting President.

While that is an unfortunate turn of events, it begs the question as to what evidence Jack Smith and his team compiled. The release of the final report in the election interference case (but not the classified documents case) provides some fascinating details at what President Trump would have faced in court. Trump’s tweets were not immediately provided to Jack Smith’s team for months because of delays from Elon Musk. It also took Smith more than a year to acquire incriminating text messages between Representative Scott Perry and Trump DOJ official Jeffrey Clark which provided an outline of how to subvert the election. Additionally, there were witnesses who Trump tried to prevent from testifying, including then Vice – President Mike Pence. And, Smith released how specific statements by Trump led to a response from the mob of rioters on January 6th. Specifically, Trump’s statements and tweets singled out Vice – President Mike Pence for his refusal to overturn the election. These communications led to those at the rally to go look specifically for the Vice – President before he was ushered to safety. The report makes clear that all of the evidence collected by the Special Prosecutor and his team would have been more than enough to present to a jury and more likely enough to convict the former President of trying to subvert the 2020 election.

One interesting revelation, which would not have been presented to a jury, was Jack Smith’s decision to not charge Donald Trump with the grave charge of “inciting insurrection.” The federal insurrection charge had not been used in more than a century. And its previous use had been against outsiders trying to overthrow a lawful government as opposed to a current politician trying to retain power. It was not clear if the federal statute would have applied to a President (or other politician trying to remain in power). In the end, Jack Smith decided not to charge the former President under this statute. This clearly demonstrates that Jack Smith was interested more in following where the facts and law took his investigation rather than following a partisan course based on revenge or retribution. While he probably could have charged Trump with “inciting insurrection” Jack Smith made the noble decision to not charge Trump, allowing only charges that were warranted and supported by evidence.

But in the end it was all for naught. Jack Smith’s investigation was halted when Trump won election back to the White House. But the evidence he compiled is now there for all to see. But in his court filing dismissing the case Jack Smith made sure to state that even if the prosecution did not go forward it did not change “the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution[’s case].

 

Engagement Resources

  • U.S. Department of Justice – full text of Jack Smith’s final report on the election interference case.
  • Politico – news site’s analysis of Jack Smith’s final report on the 2020 election interference case.
  • CBS News – news site’s analysis of the classified documents case and its current status.

 

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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