Jack Smith’s Closing Argument | The New Yorker
It turned out that the best witness in the unfinished prosecution against President Donald Trump was the prosecutor himself. The House Judiciary Committee, which questioned former Special Counsel Jack Smith on December 17 as part of its investigation into President Biden’s alleged militarization of the Justice Department, may have recognized this problem. The panel initially denied Smith’s request that he be allowed to testify in public. Then he released the transcript and video of his deposition on New Year’s Eve, burying Smith’s reminder of the cost of letting Trump go unpunished and the danger of the president’s vengeance against those who sought to hold him accountable.
Trump likes to denounce the “deranged Jack Smith,” but throughout his more than eight-hour deposition, Smith came across as highly controlled and deliberative. From the start, the Republican lawyer pressed Smith over accusations that, by prosecuting Trump, he was fulfilling the political expectations of Biden and Democrats. During the summer of 2023, grand juries returned two indictments against Trump based on Smith’s investigation, accusing him of seeking to overturn the results of the 2020 election and of improperly bringing classified documents to Mar-a-Lago and obstructing justice to avoid returning them. “Now people with different views than you can say that the special counsel’s office is only interested in prosecuting President Trump because there is an election coming up and he will be the Republican nominee,” the lawyer said. “And the special counsel works for a Democratic president, the special counsel works for a Democratic attorney general. And so the laser focus of the special counsel on President Trump is just to keep him from, you know, either being the party’s nominee or being a winning party’s nominee – or, at the very least, keeping him off the campaign trail. How do you respond to that?”
I read the transcript of that exchange before watching it on video, and it was easy to imagine Smith, a veteran public corruption prosecutor who has targeted politicians from both parties, seething over this attack on his integrity. But he betrayed no emotion. “This is all false, and I’m going to say a few things,” he said, his hands on the table and his voice level. “The first is the evidence here that clearly shows that President Trump was, to a large extent, the most culpable and responsible person in this conspiracy. These crimes were committed for his benefit. The attack that took place at the Capitol, which is part of this case, did not happen without him. The other co-conspirators did it for his benefit. So, as to why we would bring a case against him, I completely disagree with any characterization that our work was aimed at. in any way to embarrass him in the presidential election I would never take orders from a political leader to embarrass another person in an election, that’s not who I am.
In his questioning, Judiciary Committee Chairman Jim Jordan seemed to be looking for something – anything – to pin on Smith. Jordan bristled at the “remarkably long brief” – one hundred and sixty-five pages, Jordan noted – that Smith filed following the Supreme Court’s ruling on presidential immunity, summarizing the evidence he and his team planned to use at trial. Jordan delved deeper into Smith’s call to a former colleague in 2022 to congratulate him on his return to the Justice Department and express interest in a possible position, as if there was anything suspicious about that ambition. Jordan was particularly saddened by the fact that, during Smith’s investigations, he had subpoenaed call logs from lawmakers’ phones, without revealing that the phone numbers belonged to members of Congress. (Under the rules in place at the time, Smith testified, this was unnecessary.) Sen. Josh Hawley claimed his phone was “tapped” and other senators complained that Smith was spying on “political opponents.” Here again, Smith showed restraint. He described how his office, mindful of the constitutional protections afforded to members of Congress by the Speech or Debate Clause, obtained approval from the Justice Department’s Public Integrity Section. Specifically, he explained why this step was necessary to prove who Trump spoke with on January 6. “If Donald Trump had chosen to call a number of Democratic senators,” Smith said, he would have obtained their call logs. “So the responsibility for why these documents, why we collected them, is…that lies with Donald Trump.”
The Republicans’ conclusions from Smith’s testimony were, at best, irrelevant to their claims about militarization. The main one concerned the House select committee on January 6, which conducted a separate public inquiry. Cassidy Hutchinson, a former aide to White House chief of staff Mark Meadows, was the star witness, testifying in the summer of 2022 that Trump rushed behind the wheel of the presidential limousine and demanded to be driven to the Capitol. But Smith described Hutchinson as “a second- or even third-hand witness” and said his account was contradicted by someone who was present. “The ENTIRE January 6 Partisan Committee Case Was Destroyed by…Jack Smith,” Republican members of the House Judiciary Committee posted on X. “The star witness is completely unreliable!” A trap, perhaps, but from the Democrats on the committee, not from Smith, who presents himself as a cautious prosecutor, aware of the limits imposed by the courts on the use of hearsay.
The conventional wisdom about the criminal charges filed against Trump after his first term — four in total — is now that they were politically damaging to Democrats and legally reckless. This seems half true. Certainly, the onslaught of prosecutions against the former and future president has contributed to a sense of partisan accumulation. But the indictments obtained by Smith’s office were the strongest of the bunch, and Smith’s testimony illustrated their importance. Others might have doubts about the wisdom of pursuing Trump. Not Smith. “If I were asked today whether to prosecute a former president based on the same facts,” he replied, “I would do it whether that president was a Republican or a Democrat.”
Meanwhile, the Trump administration’s allegation that Biden weaponized the Justice Department is growing more surreal by the day. The Republican lawyer began his questioning of Smith by walking him through material from Judge Robert Jackson’s famous speech as attorney general in 1940 about the enormous power of the federal prosecutor to “select the people he thinks should be arrested, rather than to choose the cases that should be prosecuted.” The lawyer asked: “Do you agree with this?” ” and you could see where this could lead: an outraged tale of vindictive prosecution.
But it was Trump who ordered the indictments against New York Attorney General Letitia James (three trials, no less) and former FBI Director James Comey to be dismissed, and who fired prosecutors who refused to comply with his instructions. Susie Wiles, Trump’s own chief of staff, acknowledged: “I don’t think he wakes up thinking about retaliation. But when there’s an opportunity, he’ll take it.” In late December, Attorney General Pam Bondi commented on an active grand jury investigation into the militarization of government under the Biden and Obama administrations, saying there was “a decade-long stain on the country committed by high-ranking officials” and that one of the subjects of the investigation, former CIA Director John Brennan, was among the “bad actors.” This is not at all the Jacksonian vision of prosecutors “sensitive to fair play and sportsmanship”.
