Former special counsel Jack Smith was still contemplating whether to charge President Trump’s co-conspirators in the Jan. 6 case when the president won the election, he revealed to the House in a closed-door deposition released Wednesday.
Smith also told investigators he was preparing to rely on a number of Trump allies who agreed to testify against the president that “what they were trying to do was an attempt to overthrow the government and illegal.” He also said the violence of Jan. 6 was “foreseeable” to Trump.
“Our case was built on, frankly, Republicans who put their allegiance to the country before the party,” Smith told the panel’s team over the course of a more than seven-hour interview on Dec. 17.
The Justice Department prohibited Smith from talking about not-yet-public information about his investigation into Trump’s retention of classified documents at Mar-a-Lago. He was also more broadly prohibited from speaking about aspects of either case against Trump still covered by grand jury secrecy rules.
But the 255-page transcript offers new insights into Smith’s approach to the case, a rare window into the mind of a prosecutor prohibited from making bombshell statements about the case and who has been little heard from since a brief press conference in 2022 announcing he would oversee the investigations.
Smith told investigators that he met with many of Trump’s allies in the case – saying he had some level of cooperation with some of six co-conspirators they accused of working alongside the president to block the peaceful transfer of power.
“Some of the co-conspirators met with us in proffers and did interviews with us,” Smith said.
“My staff determined that we did have evidence to charge people at a certain point in time. I had not made final determinations about that at the time that President Trump won reelection, meaning that our office was going to be closed down.”
Smith also said, had the Jan. 6 case gone to trial, he planned to bring witness after witness who voted for Trump but saw his efforts as unlawful.
“All witnesses were not going to be political enemies of the President. They were going to be political allies. We had numerous witnesses who would say, ‘I voted for President Trump. I campaigned for Trump President Trump. I wanted him to win,’” Smith said.
Smith said they would have relied on testimony from the former Speaker of the House in Arizona, Rusty Bowers, who also testified before the House Select Committee on Jan. 6, as well as the prior speaker of the Michigan House. In both states, Trump and allies pressured delegates to submit false certificates declaring him the winner of the 2020 election.
Smith repeatedly denied any political influence in his case, saying that Trump faced charges due only to his behavior. He also said he did not have any coordination with the office of Fulton County District Attorney Fani Willis (D) or Manhattan District Attorney Alvin Bragg (D), who also brought cases against Trump.
“I entirely disagree with any characterization that our work was in any way meant to hamper him in the Presidential election. I would never take orders from a political leader to hamper another person in an election. That’s not who I am,” he said.
He ultimately brought charges against Trump under four statutes.
“We wanted to make clear that this was not about trying to interfere with anyone’s First Amendment rights, that this was a fraud. And as you know, under Supreme Court precedent, fraud is not protected by the First Amendment,” he said.
“There is no historical analog for what President Trump did in this case. As we said in the indictment, he was free to say that he thought he won the election. He was even free to say falsely that he won the election. But what he was not free to do was violate federal law and use knowing — knowingly false statements about election fraud to target a lawful government function. That he was not allowed to do. And that differentiates this case from any past history.”
Smith said Trump was able to foresee the violence of Jan. 6.
“Our view of the evidence was that he caused it and that he exploited it and that it was foreseeable to him,” Smith said.
“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.”
Smith declined to answer whether he ever spoke to former Vice President Mike Pence in building his case, with the transcript showing the group agreed to go off the record.
But he said Trump’s tweet on Jan. 6 attacking Pence amid the riot “without question in my mind endangered the life of his own Vice President.”
Smith said Trump consistently rejected information from those who said he had no legal pathway to remain in office after losing the election, saying prosecutors could show a “pattern” of Trump sidelining those aides while elevating those with fringe beliefs.
“There was a pattern in our case where any time any information came in that would mean he could no longer be President he would reject it. And any theory, no matter how far-fetched, no matter how not based in law, that would indicate that he could, he latched on to that,” Smith said.
Smith has made multiple calls to be able to testify publicly, something special counsels are typically permitted to do after filing their final report.
House Judiciary Chair Jim Jordan (R-Ohio) has not ruled that out but has yet to schedule anything.
Meanwhile, House Democrats plan to hold a hearing on the fifth anniversary of the Jan. 6 attack, reconvening its select committee for the event.
While the Mar-a-Lago volume of Smith’s report remains under seal, U.S. District Court Judge Aileen Cannon agreed to release it on Feb. 24, but in doing so agreed to a timeline suggested by Trump’s legal team that allows for his challenge.
Smith’s attorney, Peter Koski, argued during the deposition that Smith faced great risk by agreeing to speak with the House Judiciary because the attorney has been repeatedly targeted by Trump.
“I feel compelled to make an observation about the risks of participating in this deposition. The most powerful person in the world has said that Mr. Smith should be in jail because of his work as special counsel, not because Jack did anything wrong, but because he had the audacity to follow the facts and the law and apply them to that powerful person,” Koski said.
He went on to mention an interview Trump chief of staff Susie Wiles gave to Vanity Fair where she acknowledged the president’s efforts to use the Justice Department to carry out a retribution campaign against his enemies.
“In the face of those threats, Mr. Smith appears today undaunted, comforted by the knowledge that not only did he do nothing wrong, he conducted his work as special counsel with integrity, impartiality, and an uncompromising commitment to the rule of law.”