Special Prosecutor Jack Smith gave a closed-door, eight-hour deposition to the House Judiciary Committee that was later—surprisingly—made public. In this episode, hear highlights from his testimony about the investigation into Donald Trump’s efforts to overturn the 2020 election, including the fake electors scheme, key prosecutorial decisions, and why members of Congress chose to scrutinize the investigation rather than the alleged crimes.
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Background Sources
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The Deposition
Video: “Jack Smith Deposition.” Published December 31, 2025. House Judiciary GOP. YouTube.
Transcript: “Deposition of: Jack Smith” December 17, 2025. House Judiciary Committee.
January 6 Background
“Eastman Memo.” 2021. CNN.
Upcoming Jack Smith Hearing
“Former Trump prosecutor Jack Smith to publicly testify in House Judiciary hearing.” Ellis Kim and Piper Hudspeth Blackburn. January 12, 2026. CNN.
Trump Administration Lawlessness
“JD Vance says ICE agent in Minneapolis shooting has ‘absolute immunity’.” January 8, 2026. Associated Press. YouTube.
“An Interview With the President.” January 9, 2026. Michael Barbaro (Host). The Daily. New York Times Podcasts.
Epstein Files “Post Birth Abortion” Tip
FBI Intake form for Jeffrey Epstein Child Sex Trafficking Complaint, Case no. 50D-NY-3027571. August 3, 2020. U.S. Department of Justice.
“Fact Check: Unverified FBI tip claims Trump witnessed Epstein victim’s baby being killed, dumped in Lake Michigan.” Taija PerryCook. January 4, 2026. Snopes.
Audio Sources
Jack Smith Deposition
House Judiciary Committee
December 17, 2025
Clips
9:35 Jack Smith: The decision to bring charges against President Trump was mine, but the basis for those charges rests entirely with President Trump and his actions, as alleged in the indictments returned by grand juries in two different districts. Our investigation developed proof beyond a reasonable doubt that President Trump engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the lawful transfer of power.
11:55 Jack Smith: Toll records were sought for historical telephone routing information, collected after calls had taken place, identifying the incoming and outgoing call numbers, the time of the calls and their duration. Toll records do not include the content of calls. Those records were lawfully subpoenaed and were relevant to complete a comprehensive investigation. January 6th was an attack on the structure of our democracy in which over 140 heroic law enforcement officers were assaulted. Over 160 individuals later pled guilty to assaulting police that day. Exploiting that violence, President Trump and his associates tried to call Members of Congress in furtherance of their criminal scheme, urging them to further delay certification of the 2020 election. I did not choose those Members, President Trump did.
29:25 Jack Smith: 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.
30:05 Questioner: You know, people come into the Oval Office — I mean, the President isn’t conducting his own due diligence. He is receiving people in his office that are telling him these things, whether it be Rudy Giuliani, whether it be John Eastman, whether it be Jeffrey Clark, whether it be Sidney Powell. And, you know, for the most part, he is just receiving this information and, you know, his statements are almost just regurgitating what these people have told him. I mean, isn’t that the case?
Jack Smith: No. And, in fact, one of the strengths of our case and why we felt we had such strong proof is 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.” The Speaker of the House in Arizona. The Speaker of the House in Michigan. We had an elector in Pennsylvania who is a former Congressman who was going to be an elector for President Trump who said that what they were trying to do was an attempt to overthrow the government and illegal. Our case was built on, frankly, Republicans who put their allegiance to the country before the party. And so the President got information from people he country before the party. And so the President got information from people he trusted on other issues. He rejected it whenever it didn’t fit him staying in office. And 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. And we had — we were confident that we had very strong proof of that pattern. He also, I would just add, very consciously did not try to reach out to the sort of people who have the most expertise on these issues. He reached out to people who he thought could back him up.
34:45 Questioner: Why didn’t you charge any of those, those co-conspirators?
Jack Smith: As we stated in the final report, we analyzed the evidence against different co-
conspirators. 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.
35:30 Questioner: But surely one of the fundamental principles of prosecutorial work is you work from the bottom up and you try to get as many fact witnesses to work with you. And a lot of times those fact witnesses have criminal liability. And a lot of times those lower fact witnesses, the smaller fish, almost always they’re — they’re either prosecuted or they are given an immunity because they fear they’re going to be prosecuted. But here you didn’t – you know, you kept laser focused only on President Trump.
Jack Smith: Two points. One, as I said, we were considering prosecutions of these people, and I think — I don’t want to say what the ultimate conclusion of that would have been, but that was something that was being considered. The second thing I think to understand contextually is this was a case where the issue was how to present it in a concise way. We had so many witnesses, again, so many witnesses who were allies of President Trump available to us to testify. This was not a case where we needed more witnesses, it was a case where we needed to be able to present the case in a streamlined way because there was so much evidence.
38:35 Questioner: People with different views than you can say the Special Counsel’s Office is only interested in prosecuting President Trump because an election is coming up and he is — he’s going to be the Republican nominee. And the special counsel works for a Democratic President, the special counsel works for a Democratic Attorney General. And so the special counsel’s laser focus on President Trump is simply to prevent him from, you know, either being the party’s nominee or being a successful party’s nominee — or, at the very least, keeping him off the campaign trail. How do you respond to that?
Jack Smith: All of that is false, and I’ll say a few things. The first is the evidence here made clear that President Trump was by a large measure the most culpable and most responsible person in this conspiracy. These crimes were committed for his benefit. The attack that happened at the Capitol, part of this case, does not happen without him. The other co-conspirators were doing this for case, does not happen without him. The other co-conspirators were doing this for his benefit.
40:15 Questioner: So did you develop evidence that President Trump, you know, was responsible for the violence at the Capitol on January 6th?
Jack Smith: So our view of the evidence was that he caused it and that he exploited it and that it was foreseeable to him.
Questioner: But you don’t have any evidence that he instructed people to crash the Capitol, do you?
Jack Smith: As I 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. Now, once they were at the Capitol and once the attack on the Capitol happened, he refused to stop it. He instead issued a tweet that without question in my mind endangered the life of his own Vice President. And when the violence was going on, he had to be pushed repeatedly by his staff members to do anything to quell it. And then even afterwards he directed co-conspirators to make calls to Members of Congress, people who had were his political allies, to further delay the proceedings.
42:05 Questioner: You sought gag orders in both the Florida case and the D.C. case. Is that correct?
Jack Smith: We sought an order in the D.C. case under a rule — I think it’s 57.2 — and we did that because Donald Trump was making statements that were endangering witnesses, intimidating witnesses, endangering members of my staff, endangering court staff. As you might remember, in the — right around when the indictment was released, he issued a tweet saying: “If you come after me, I’ll come after you.” He called — in a tweet he called General Mark Milley a traitor and mentioned that what he’d done in olden times people would be put to death. As a result of the things he was saying, the judge in this case was put — received vile death threats. And with respect to D.C., both the district court and the court of appeals, a panel of judges, found that his actions were, in fact, causing what we said they caused. They were causing witnesses to be intimidated and endangering people. And I believe it was the court of appeals also found that in addition to intimidating or chilling witnesses who existed, it would chill witnesses who had not yet come forward because they were afraid that they would be next. So, yes, we did file that and I make no apologies for that.
48:15 Jack Smith: I’m sorry to interrupt you. Before I was special counsel, the people who were working on one of the investigations did get a search warrant for the cell phone of one Congressman, Congressman Perry.
48:35 Questioner: With the toll records subpoena, maybe just walk us through like what you get. You get the — you get the incoming, the telephone numbers that call a particular cell phone, right?
Jack Smith: That is correct.
Questioner: And you get the time that the call occurred?
Jack Smith: Yes.
Questioner: And you get the — do you get the length of time of a call?
Jack Smith: I believe that’s correct.
Questioner: Okay. And you also get the list of numbers that — the outgoing. You get the incoming and the outgoing, right?
Jack Smith: That’s correct.
Questioner: And is there any other information that the toll record subpoenas provide?
Jack Smith: That — that is the — what I understand is the major thing you’re seeking to get with the toll records.
Questioner: Okay. And when you get one of these subpoenas, you just send it to the carrier, correct? It doesn’t involve the judge?
Jack Smith: The subpoena? Yes, that is correct.
Questioner: Okay.
Jack Smith: It doesn’t require a judge.
Questioner: The only time a judge gets involved is if you’re seeking a nondisclosure order. Is that right?
Jack Smith: If it’s a subpoena for toll records, that is correct.
Questioner: Okay. And do you always seek the — you know, is it the practice of your team to always seek the NDO?
Jack Smith: Well, in this particular case, there was a grave risk of obstruction of justice, given the obstructive conduct of President Trump as is set forth, for example, in the indictment in Florida. President Trump tried to obstruct that case in multiple ways. Then — as I mentioned earlier, in the litigation regarding 57.2, we had numerous instances of him attempting to, in our view, intimidate witnesses or keep them from cooperation. And so, given that reality, we intimidate witnesses or keep them from cooperation. And so, given that reality, we did seek nondisclosure orders for the toll record subpoenas you’re talking about.
53:00 Questioner: As it relates to Members of Congress and Senators and definitely their staff as well, I mean, that presents concern that we don’t have an opportunity to, you know, quash the subpoena. How does your office deal with that prospect?
Jack Smith: Well, the nature — and I should also be clear that when you’re getting an NDO, say, for toll records, it’s not based on an allegation that necessarily the person who has the phone number is personally going to obstruct the investigation. It’s that if this gets out, people could obstruct the investigation. So I want to make that clear. The second point would be, you are correct in that inherent in getting an NDO is that at various times, people who might have arguments about why to quash a subpoena won’t be able to make those arguments. In our investigation, this came up with Twitter. We wanted to get records from Twitter regarding President Trump. Twitter — and we applied for an NDO from the judge. Twitter refused to provide the records unless they could tell President Trump about that And so we had litigation with this in the District Court. The District Court agreed that there are situations — and there it was that Twitter argued that President Trump should be able to assert executive privilege over the records we wanted. And as a result of that litigation, the Court of — the District Court found that it was proper of us, given the level of obstruction in this case, to get that NDO. That decision by the District Court was upheld by the Court of Appeals. And then that decision by the Court of Appeals, Twitter — my recollection is Twitter sought to get the Supreme Court to overrule that, and the Supreme Court refused to. And so I tell you all that to say —
Questioner: And then you fined them, right?
Jack Smith: Well, actually, that’s before. They refused to comply even after she ruled.And she set a schedule of fines, and so part of the appeal was —
Questioner: And you sought the fines, right?
Jack Smith: Absolutely, yes.
Questioner: Okay.
Jack Smith: But the point of telling you that was that inherent in an NDO is it may be that1 certain arguments about why a subpoena should be quashed can’t be made. So that happens, and I think there’s a parallel in those situations.
57:25 Questioner: When you sought these nondisclosure orders, the judge didn’t know it was a Member of Congress. Is that correct?
Jack Smith: I don’t think we identified that, because I don’t think that was Department policy at the time.
58:20 Questioner: Did you seek search warrants for the content of any of the telephone calls or — you know, the content relates mostly to text messages. Did you seek a search warrant for the content of any text messages from Members?
Jack Smith: From Members?
Questioner: Yes.
Jack Smith: No, I don’t recall that.
Questioner: Okay. It was just toll records?
Jack Smith: Correct.
58:40 Questioner: Okay. But by not telling the Members, you know, by going through this NDO process, I mean, they didn’t have an opportunity to litigate the Speech or Debate concerns.
Jack Smith: That is correct.
Questioner: And that’s unfair, in our view.
Jack Smith: I understand your position. And, as I said before, we respect the Speech or Debate Clause. I’m aware of no case in the Supreme Court or the D.C. Circuit that says that getting noncontent toll records from a third party violates the Speech or Debate Clause, particularly where — and I think an important point here is these records were not sought to use against Members of Congress who are targets. The investigation we were conducting was of President Trump and his co-conspirators, who were all obviously not Members of Congress, but also private — not even members of the White House.
2:08:20 Rep. Jamie Raskin (D-MD): We, in our conclusions, cited a number of statutes which ended up, I think, being part of your investigation, including conspiracy to obstruct a Federal proceeding, conspiracy to defraud the United States, false statements, and so on. But you added something which I think was very interesting, which was a conspiracy to violate voting rights, which is something that we hadn’t done, and I wonder if you would take a moment to expound on why you thought you had sufficient evidence to prove beyond a reasonable doubt that there was a conspiracy to violate the voting rights of the people.
Jack Smith: Sure. The right to vote in a Presidential election is one of the most sacred rights that America has — Americans have, and in this particular case, we had strong evidence that the defendants in this case sought to interfere with, obstruct, injure that right. We had evidence, and just a couple of examples, where President Trump was asking local officials to find 11,000 votes. When you find 11,000 votes, you’re diluting other people’s votes. We had evidence that they were targeting certain States and particularly certain parts of certain States, generally urban parts of States, to have those votes thrown out with no factual basis whatsoever. I believe we cited this in our final report, but there is even statements of the co-conspirators in this case, at least one that’s coming to mind now, specifically saying, “We want to get rid of these votes. We want to subtract them.” And, diluting the vote count in that way, there is strong precedent for that being a violation of the statute that we charged.
2:10:25 Jack Smith: The lawsuits, you know, we made clear in our indictment that there are proper ways to dispute an election, and asking for an audit, which President Trump did I believe in only two of the States that were in question, that’s a way you can do that. Filing lawsuits, completely legal and proper way to do that. But, in this case, those lawsuits were part of our proof that put President Trump and his co-conspirators on notice. The suits, their results, and the things the court said in finding those suits without merit put him — well, one component of evidence that put him on notice that these allegations were false. Also, there were instances where there were pretextual lawsuits. There was one lawsuit, for example, that was filed in New Mexico minutes before the deadline so they could say there was a dispute in New Mexico so they could proceed further with the fake electors ballot. There was another lawsuit in Georgia where one of the co-conspirators explicitly said in an email, “We’re on notice that the things in this lawsuit aren’t accurate, so we shouldn’t have the President sign a certification of this lawsuit.” And then they played with the language a little and had him sign a certification nonetheless. And so these lawsuits — well, filing the lawsuit, absolutely, clearly is something you can do. They were probative evidence of the criminal intent in this case for those limited reasons I just suggested.
2:44:25 Questioner: So you subpoenaed Speaker McCarthy’s toll records after he became Speaker, and you sought records from November 2020 through January 8th, 2021. What were you looking for with his records? Like what did you do with the information you obtained?
Jack Smith: Okay. So the relevance of those records, there would be several examples, but his contacts with either co-conspirators, the President, or conduits of information to the President was relevant to our investigation. An example I could give you is, on January 6th, we had information from Mark Meadows, who was present for a call where Congressman McCarthy was asking for help. He was asking the President to come to his aid while the Capitol was being seized. Getting the exact toll records for when that happened was relevant for our investigation both to question other witnesses about it so we had an accurate timeline and also to corroborate that the call happened at approximately the time witnesses said it happened.
Questioner: But it’s pretty significant to subpoena the Speaker of the House’s toll records, right?
Jack Smith: We followed Department policy, and we followed all legal requirements in getting those records.
Questioner: I mean, you know, to get the information you’re looking for, nobody disputed the Speaker and the President were having communications on January 6th. So one way you could have gotten that information is you could have asked the Speaker’s lawyer to look at his phone records and to give you the information you needed, right?
Jack Smith: Well, you say now that nobody is disputing, but my experience in criminal investigations is that people often at trial dispute things that you never thought were going to be in dispute during the investigation, and so, when I conduct a criminal investigation, I don’t assume there will be no disputes. Having a record that is a hard record about a time, and the timeline of that afternoon was particularly important because the violence had started. The President refused to stop it. He endangered the life of his Vice President, and then he’s getting calls, and not just — not calls from Democrats, not calls from people he doesn’t know — calls from people he trusts, calls from people he relies on — and still refuses to come to the aid of the people at the Capitol. That’s very important evidence for criminal intent in our case.
Questioner: Right, but you could have asked Elliot Berke for that information, the Speaker’s lawyer. You could have asked Elliot Berke to say, “Can you get us the Speaker’s, you know, phone records for this time,” and he probably would have said, “Of course,” avoiding a toll record subpoena?
Jack Smith: And your question?
Questioner: Why didn’t you do that?
Jack Smith: We got these records in a manner that was consistent with the law and consistent with Department policy. There was nothing improper about how we got these Records.
2:51:30 Jack Smith: Mark Meadows, when he interviewed, when we interviewed him, he referenced the fact that that afternoon Chairman Jordan had been in contact with the White House. And, like Congressman McCarthy’s contact with the White House, it was relevant because, again, Meadows stated this, that these were supporters. These were credible people that the President relied on. And what I recall was Meadows stating that “I’ve never seen Jim Jordan scared of anything,” and the fact that we were in this different situation now where people were scared really made it clear that what was going on at the Capitol could not be mistaken for anything other than what it was. And it goes back to that sort of information from someone who is a credible source to the President, proving that that actually happened and that there’s actually a record of that call and exactly when it happened and what actions happened after that or didn’t happen after that, extremely probative to our case.
3:02:30 Questioner: In your view, who needs to be held to account on these toll records subpoenas?
Jack Smith: Well, certainly my office did everything consistent with the law and Department regulations at the time. As I think we referenced earlier this morning, the Department regulations on this since we issued these toll records has changed. I believe now, and I believe this is in 2024, if we were to make an NDO application to a judge, we would need to identify if they were Members of Congress. And so, to the extent that you think something needs to be changed, that change happened, but that was not required at the time that we issued these subpoenas.
3:12:05 Questioner: It seems like the alternate-electors matter, it seems like it was subject to a lot of starts and stops. And I wanted to know whether, after you became the special counsel in November of 2022, were there any starts and stops, or was that full speed ahead on that probe?
Jack Smith: That was a part of the case that we investigated from the time I started until the indictment. It ended up being one of the most powerful parts of the case. We had electors who were going to be witnesses. I had referenced earlier a Congressman from Pennsylvania who had said this was an attempt to overthrow the government. We had other electors who said, “I was told that this would only be used if we won in litigation.” And, obviously, the record in our case showed that the co-conspirators were trying to use their elector votes despite that fact. And, again, this goes to the point I made earlier. These are people who wanted to be electors for Donald Trump. They are not people who were opposed to him. They were not people who were from a different political party or enemies. And so the fact that we had elector witnesses like that who felt either they’d been misled or they felt that this whole effort was an attempt to overthrow the government, I thought that was pretty powerful evidence. And so we moved that part of the investigation forward with the rest of the case.
3:15:50 Jack Smith: One of the things we were investigating was things that happened in Fulton County, particularly — there was an election worker by the name of Ruby Freeman. Her mother and — she was the mother of a woman named Shaye Moss. They were people that Rudy Giuliani and Donald Trump targeted with absolutely false claims of election fraud, claims that Rudy Giuliani later admitted he didn’t have evidence for, claims that he was held liable on defamation for, caused them to endure all these sort of vile threats. And that whole episode, as well as, sort of, the claims, the false claims, about the vote count in Fulton County, we did look into that and collect evidence.
4:09:50 Questioner: Let’s start with before January 6. What was the nature of some of these communications with the White House or with co-conspirators of Donald Trump leading up to January 6 with Members of Congress?
Jack Smith: Well, it varied. Sometimes the communications were relevant to us to show that people were telling Donald Trump that the things he was saying were not true. Other times, they were evidence of the false nature of the things they were saying. So an example would be, there are two voicemails that Rudy Giuliani left for Senators, and those voicemails show him saying things that were not true, using knowingly false claims to try to get those Senators to further delay the certification of the vote.
4:11:30 Jack Smith: We had evidence from Department of Justice officials that Donald Trump said to them, “Just say the election is corrupt, and leave the rest to me and the Republican Congressmen.” I think, given that was the perspective that Donald Trump had, our view is that the case we would’ve presented at trial would’ve been Donald Trump preying on the party allegiance of people in his party. And people like the Vice President didn’t agree to that. People like the elector from Pennsylvania I mentioned didn’t agree to that. People like the speaker of the House in Arizona didn’t agree to that. But the extent to which those contacts were happening was relevant to our investigation.
4:12:20 Questioner: Let’s start on January 6. So I believe in the evening — did your investigation uncover or learn that Mr. Trump personally called Members of Congress on the evening of January 6?
Jack Smith: Yes.
Questioner: Do you remember who those Members were?
Jack Smith: I would have to look at the records to be sure, but, the best of my recollection, he was trying to get in touch directly himself with Senator Hawley and Senator Hagerty, and then there were several Senators who he directed Rudy Giuliani to get in touch with.
Questioner: And who were those Senators that Mr. Trump directed Mr. Giuliani to get in contact with, to the best of your recollection?
Jack Smith: To the best of my recollection — and this comes from an email, or I think it was a text maybe, that Boris Epshteyn sent to Mark Meadows, and it basically said something to the effect of, “The President told the mayor to call these Senators,” and they needed numbers. And what our investigation ultimately showed was, they sent that text after they’d already started trying to call Members and didn’t think they had — and ended up understanding that they didn’t have the right phone numbers. In fact, the message that they left for Senator Lee, which he voluntarily provided to our office, that was meant for Senator Tuberville, I believe. And the message that he left for Senator Sullivan, I believe it was, was for Senator — the name’s escaping me now, but it was another Senator that he meant to call. We had also interviewed Boris Epshteyn before these subpoenas were issued. He corroborated that they were, in fact, trying to call Senators. He dissembled and tried to imply that the President hadn’t directed him to do it, even though there was a text message saying specifically that he had. But he agreed that they’d tried to call these Senators and that they had certain Senators’ numbers themselves and so they didn’t need those numbers. And that would be — I believe it was Senator Cruz and possibly — I think he said they possibly tried to call Senator Graham as well.
4:15:25 Jack Smith: We also in the course of the investigation interviewed Rudy Giuliani. And one of the things that we asked him, if you recall, in the message — and I can’t remember which Senator it was for, but in the message that he left, he referenced the fact that he was calling on fellow Republicans. And in the interview we asked him, you know, “Why did you say you were calling on your fellow Republicans?” And he said, “Well, I wasn’t going to be calling Democrats about this. Even some Republicans wouldn’t go along with this. So of course I would call only Republicans.” And, in fact, that was consistent with our investigation throughout, that the people that President Trump and his co-conspirators reached out to were people who they thought would go along or help them because of party allegiance. And Giuliani, in particular, would reference that he expected their cooperation because they were Republicans. There was one particular meeting that he attended where he got a hostile reception because he had no evidence to back up the fraud claims, and he said something to the effect of, “I thought we were all Republicans here.”And so that was a theme throughout the case. And it went to the strength of the case that we had, because the witnesses we were going to call were the people that the President reached out to to sort of further this criminal scheme.
4:17:05 Questioner: I want to touch on a point, because it seems like the evidence you uncovered showed certain Members of Congress, including Republicans, pushing back on this assertion about the big lie. And I’m characterizing some of these claims about the election as the “big lie.” Is that okay, if I use that term?
Jack Smith: You can use whatever term you like.
Questioner: Okay. I’m going to use the “big lie.” So do you recall any evidence, when you were talking to Mr. Giuliani, that he truly believed all the voter-fraud claims that he was putting out around the country?
Jack Smith: Our evidence was, he did not. And, in fact, when we interviewed him, he disavowed a number of the claims. He claimed they were mistakes or hyperbole, even the claim about Ruby Freeman, where he, you know, basically destroyed this poor woman’s life by claiming she was a vote scammer. President Trump did the same thing in a recorded call with the Secretary of State; he disavowed things he’d said in that interview.
4:19:10 Rep. Zoe Lofgren (D-CA): Mr. Bannon made an extraordinary video basically predicting the events of January 6th on the day before. Were you able to discover, either by interviewing Mr. Bannon or those who had knowledge of what he was doing, how he was aware of the riot before it happened?
Jack Smith: We did not interview Mr. Bannon. We — I believe — I believe that that particular statement you’re talking about would’ve been part of our proof, and my recollection is that we had evidence that would indicate, from some point not immediately after the election but shortly thereafter, sometime — it might’ve been closer to December period that Bannon, who had been out of touch with President Trump for some period of time, got back in more regular touch with him sometime. And, in fact, this is reminding me, my recollection is that we had a text thread between Bannon and Epshteyn that went through a lot of this period. On that text thread, I believe it was the evening of January 6th, right around the time the Senators calls were occurring at the direction of the President, there was an exchange between those two wherein — I believe it was Epshteyn asked Bannon, “Are you in touch with him?” And the answer was affirmative, and it was something to the effect of, “He’s still on fire.” And that’s right at the same time that these calls are happening, after he had refused to do what he could do stop the attack on the Capitol, after the tweet about Mike Pence.
4:23:20 Rep. Zoe Lofgren (D-CA): Who introduced the idea of Mr. Clark becoming Attorney General?
Jack Smith: Our investigation determined that Congressman Perry had a role in getting Jeff Clark on the radar of President Trump as someone who could help him and getting meetings with Jeff Clark and the President.
4:24:05 Questioner: And how big was the window of records that you requested for these Members of Congress?
Jack Smith: Well, the records regarding those calls on January 6th, the period of time was from, I believe it was, January 4th to 7th. But there was earlier subpoenas, including the one referenced earlier today regarding Congressman McCarthy, that was a broader period of time from, I want to say it’s about November 3rd through, again, it was either January 6th or 7th.
4:26:30 Questioner: And let’s fast-forward to say this would’ve gone to a trial. How would you, in your experience, have used this type of evidence in a trial?
Jack Smith: Oh, it would’ve been relevant in a number of ways. So it would’ve been relevant — you could put it together in a summary chart to show the series of contacts. And it could be relevant to show the campaign that evening to reach out to Senators to delay the proceedings. It could also be relevant to show, for example, on the afternoon of January 6th, of notice — that there was notice that violence was going on; Congressmen, both Republican and Democrat, and the Vice President were in danger. That — text records would make that incontrovertible that those calls actually happened. It’d also be relevant for examining witnesses, whether it would be a prosecution witness who might not remember exactly when a call happened or a defense witness. For example, if any of the co-conspirators were to testify, which, as I mentioned before, was something we would’ve welcomed, we would’ve had toll records to question them about the calls that they made, the calls that they received, things of that nature, which, in my experience, is very — can be very effective.
4:27:45 Rep. Zoe Lofgren (D-CA): We attempted in the January 6th Committee to question Peter Navarro as well as Steve Bannon, and they were both prosecuted and spent time in jail. Roger Stone appeared but took the Fifth.
4:34:35 Questioner: I believe earlier — and we’re turning back to January 6, the conspiracy leading up, the events on January 6. And I believe earlier you said that the reason why — and I’m paraphrasing here — that you charged the President was that he was the most culpable person related to the crime of attempting to criminally overturn the 2020 election. Do you recall saying words to that effect earlier today?
Jack Smith: Yes, and because we had proof beyond a reasonable doubt and met the requirements in the Federal principles of prosecution.
Questioner: And I believe you said some of the false claims he was putting out created a certain level of distrust about the validity of the election of 2020. Do you recall saying something like that as well?
Jack Smith: Correct. That’s alleged in the indictment.
Questioner: Okay. So I want to start with how that level of distrust was created. In your report, you say — and this is a quote — “The through line of all of Mr. Trump’s criminal efforts was deceit — knowingly false claims of fraud.” Can you generally describe some of these knowingly false claims of fraud that were spread after the 2020 election?
Jack Smith: Sure. There is a number of them. And, you know, part of the explanation is — is why they’re false. And so, you know, just off the top of my head, an example is, there was — he was on notice in this election that, in Pennsylvania, for example, that he would be ahead in the vote count for a period of time, and then when the mail-in ballots were counted, his lead would dissipate. He chose to represent that phenomenon that he’d been briefed on, that was normal course of an election, that all sides knew that that’s how it was going to be, he chose to present that as evidence of fraud. And to people who are not maybe as informed as him or informed as his campaign managers who told him these things, that’s the sort of thing that creates distrust. There were fraud claims in, you know, Michigan, Georgia, where he was specifically disabused by people he trusted, by political allies, by the people, when he chose to call them, who were best situated to know. In Georgia, I’m thinking of the secretary of state. He reflexively rejected those things and continued to state false things after he’d been told repeatedly that they weren’t true.
Questioner: And why was it important? It probably goes to the mindset, but why was it important, all of these repeat statements from individuals that his — that Donald Trump’s claims were untrue? How did that play into your overall investigative findings?
Jack Smith: Well, I think that the pattern and the depth of the pattern and the length of the pattern was pretty damning evidence that he knew these things were false. He only brought fraud claims that involved States that he lost. He only approached people generally who had party allegiance to him. When he was told that a fraud claim wasn’t true, he didn’t stop making it. Another example I can give is that Sidney Powell, who’s alleged as one of the co-conspirators, was part of his team at the beginning of this conspiracy. Shortly after, she began making statements that really nobody could credit, that were facially false. And at some point, Giuliani made a statement that she wasn’t on the legal team anymore. And Trump at one point was on a call, President Trump, where he, if I recollect it right, he muted the call and said she was crazy. But then, after that point, he continued to promote her fraud claims and lawsuits. He considered putting her as a special counsel, even though he’d admitted — you know, he used the word “crazy,” and the statements she was making couldn’t by any reasonable person be viewed as true. And so I think that sort of, like, claims that were so outlandish and so just fantastical, continuing to push those sort of claims after they’d been disabused, was strong evidence of our case.
4:40:15 Questioner: When you were talking about the fake electors, you mentioned a Congressman from Pennsylvania who I guess might have — would have been a witness who might have pushed back on the fake elector scheme being legal. Do you recall saying that earlier?
Jack Smith: I do.
Questioner: Who was that member?
Jack Smith: To my recollection I think his name was Thomas Marino. He is a former U.S. Attorney and he is a former — he’s a Republican — a former Congressman. And he had agreed to be an — this is before the election — agreed to be an elector for Donald Trump. And when he was presented with this idea of the fake elector scheme, my recollection of his reaction was that this was an attempt to overthrow the government and it was illegal.
4:47:50 Questioner: Did President Trump ever acknowledge — and I believe you talk about in this paragraph — did President Trump ever acknowledge that he knew that he had actually lost the election to President Biden?
Jack Smith: Yes. So this paragraph references different statements that he made in the presence of other people. One is that, “It doesn’t matter if you won or lost the election. You still fight like hell.” And then the other was, “Can you believe I lost to this f’ing guy?” referring to Joe Biden.
4:55:00 Jack Smith: What happened with the elector plan was when they came up with the idea of having these fake electors, there were certain electors who would just not put up with it. Thomas Marino — I think he is from Pennsylvania — is an example of that. And so as a result — and he wasn’t the only one in the scheme generally. As a result, they had to replace electors. And, again, just to keep in mind, all the electors we’re talking about here are people who supported Donald Trump. These are people who signed up and said, “I want to be an elector for Donald Trump.” And these people, when they stepped out, they had to replace them. And part of what’s required under the Electoral Count Act is that there are procedures for doing that. And they couldn’t follow those procedures because they were replacing people without the consent of the governor and things of that nature. Also in Pennsylvania — I believe it was Pennsylvania — there was a call where — and there is a text of this — where electors were pushing back on this and also wanting to be covered if there was liability and, you know, to be indemnified and things of that nature. And they wanted, like, statements in their certificates basically saying, “You’re only going to use this if, you know, you win these lawsuits.” And there was a text chain with some of the people who were carrying out this scheme for President Trump basically ended with, “These people should be shot,” because — “and that we can’t let this snowball like this; otherwise, we’re going to have to do this in all the other States.”
Rep. Mary Gay Scanlon (D-PA): Again, your recollection —
Jack Smith: I’m sorry, I want to — I don’t think he said, “These people should be shot.” I think he said, “Whoever put this slate together should be shot.” I think that’s what it said.
5:00:45 Rep. Zoe Lofgren (D-CA): On November 20th, Mr. Trump calls Republican legislators from Michigan to the White House and urged them to remove the Biden electors and replace them with electors that would elect Trump. They subsequent to that made a statement that there was no evidence for that and went back, and the electors were certified as the votes had indicated they should be. Subsequent to that, in December, there was an effort to create fake electors, and, in fact, on December 14th, when the electoral colleges meet in all the State legislatures, there were 16 fake electors in the basement in Michigan and four of them tried to get into the Capitol to overturn the election. Did you look at that whole phenomena?
Jack Smith: We did.
Rep. Zoe Lofgren (D-CA): And what was your conclusion? What was the — how would that have played, if at all, in your prosecution?
Jack Smith: Well, I think that event you’re referring to — and I think we interviewed some of the law enforcement officers who were there that day when they were trying to get in. What they were doing and what the email traffic among co-conspirators showed is they were trying to mimic the procedures of — that are required by the Electoral Count Act, but they couldn’t mimic them. And if I recall, the email traffic on this started with, “We have to follow these procedures.” And then when it became clear they couldn’t follow all the procedures, it was like, “Well, do the best you can to follow as many as you can.” And so I think, if I do recall, certain States — it may have been Michigan — that the electors had to convene in a certain government location. And so as a result, I believe there may have been a State official involved in trying to get them into — if I’m thinking of the right situation — get them in there so, again, they could mimic the procedures, even though they were not the electors that represented the will of the people of how the vote was actually counted.
5:03:10 Questioner: What did Donald Trump want Vice President Pence to do to overturn the election results?
Jack Smith: Well, ultimately, he wanted him to just hand him the election, to say he won. There were different proposals that President Trump and his co-conspirators put to Mike Pence, but, in essence, he wanted Mike Pence to impose his own choice about who should be President over the will of the American people who voted in the election.
Questioner: Was one of those ways that Donald Trump tried to pressure Mr. Pence was to reject the lawful elector certificates of their votes during the electoral counting process? Was that one of the ways that you recall?
Jack Smith: That’s correct.
Questioner: How did Mr. Pence respond back to Mr. Trump’s pressure about rejecting the lawful elector certificates?
Jack Smith: I think Mike Pence, Vice President Mike Pence, falls into the category that I described before. He did something that was very hard to do. He went against his party. He paid a price for it. But I think, again, someone like that, putting country over party, I think he would have been an effective witness. He did not agree to go along with that.
5:06:40 Jack Smith: From a legal perspective, this is really quite clear. I think all of us want to make sure people’s First Amendment rights are not abridged in a way that they shouldn’t be. I think I certainly feel that way. I’m sure everybody in this room feels that way. But there is a very clear carve-out for fraud in our case law. The Supreme Court — I think there’s — one case is the Stevens case, talks about that, and there are others. And so when you’re committing a fraud, meaning you’re not just saying something that’s untrue, you’re saying it knowing it’s untrue or with reckless disregard for the truth, that’s not protected by the First Amendment. People commit crimes all the time using words. And when someone commits a fraud, an investment fraud, or someone commits an affinity fraud, where you try to gain someone’s trust, get them to trust you as a general matter, and then you rip them off, you defraud them, that’s all words, but it’s not protected by the First Amendment. And in a lot of ways this case was an affinity fraud. The President had people who he had built up — who had built up trust in him, including people in his own party, and he preyed on that. Some people wouldn’t do it. Others would. We’re lucky that enough wouldn’t that the election was upheld.
5:32:25 Jack Smith: So when we got the immunity decision we had a series of decisions to make. The first was to look at our evidence and see: Do we still have a case here? Do we still have admissible evidence that would allow us to proceed at trial? So that’s what we did first. Once we determined that we did have that evidence, the next thing we determined is, do we need to supersede the indictment. And because there was evidence before the grand jury that the Supreme Court had clearly said was immune, we determined that we needed to supersede the indictment. Once — and, I’m sorry, I’m being long, but I think the context will help. Once we determined that, we had to make sure that our conduct in going forward with an indictment and everything after complied with the election year sensitivities policy. And to do that, we consulted with Public Integrity on drafts of the indictment, on our plan forward. And as we set forth in the final report, PIN concurred that we had complied with that policy. And I would just add that policy is — does not stop prosecutors from trying their cases in court.
5:43:15 Jack Smith: On the 17th of October, Mr. Trump filed a motion to delay public disclosure of our appendix to the brief, meaning the actual evidence until after he filed his own appendix, which would have been November 14th, well after the election. So that both appendices will be released simultaneously after the election. He filed that motion before obtaining our position. So we emailed the court’s chambers, copying defense, informing the court that we did not object to that procedure. We did not object to our evidence being, in essence, embargoed from the public until after the election. So again I think there’s pretty strong evidence that we were not trying to have an effect on the election.
6:03:55 Questioner: The individual who worked for Mark Meadows by the name of Cassidy Hutchinson was a — you know, she was a star witness for the January 6 Committee proceedings, and she made some real outlandish claims that — you know, for example, one of them was that President Trump tried to take control of the wheel of the Suburban that he was being driven in. Is that an allegation that you’re familiar with?
Jack Smith: The circumstances regarding President Trump getting in the Secret Service vehicle after the ellipse speech, yes, I am.
Questioner: Okay. And what did your office’s — you know, did you evaluate that claim?
Jack Smith: We did.
Questioner: Okay. And what was your determination?
Jack Smith: Ms. Hutchinson, regarding that particular claim, was a second or even third-hand witness. She had heard other people talk about that.
Questioner: Okay.
Jack Smith: And so we went to — we interviewed, I think, the people she talked to, and we also interviewed, if my recollection is correct, officers who were there, including the officer who was in the car.
Questioner: Right.
Jack Smith: And that officer, if my recollection is correct, and I want to make sure I’m right about this, said that President Trump was very angry and wanted to go to the Capitol, but the version of events that he explained was not the same as what Cassidy Hutchinson said she heard from somebody secondhand. That’s correct.
6:26:45 Jack Smith: This was about him as a candidate trying to say he won an election he didn’t win, and so, having to frame this in that manner, obviously, it limited some of the evidence. That’s why we had to supersede the indictment. But I don’t think it was an exoneration because I still believed that there was substantial evidence that would allow us to prove the case beyond a reasonable doubt.
Music
Tired of Being Lied To by David Ippolito
