Takeaways from former special counsel Jack Smith’s scathing review of the Trump Justice Department

[Thiệu Ngô]

Former special counsel Jack Smith, whose historic prosecution of Donald Trump was upended by the president’s reelection last year, insisted that the pair of criminal cases he brought against Trump were untainted by politics.

By Casey Gannon ,Devan Cole

The current Trump Justice Department is different, Smith said in a recent wide-ranging interview with former federal prosecutor Andrew Weissmann at the University College London made available Tuesday.

Smith criticized how the Trump DOJ has handled several-high profile cases and lamented the impact its moves will have on the justice system writ large.

His comments provide a window into the thinking of a man the public rarely saw during his yearslong investigation of Trump and come as Republicans are ramping up probes into how Smith worked.

Here are the key takeaways:

Defends his investigation and says politics played no role u/

During the discussion with Weissmann, who worked on former special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election, Smith said it was “absolutely ludicrous” that politics would play a role in his probes into Trump.

“The idea that politics would play a role in big cases like this, it’s absolutely ludicrous and it’s totally contrary to my experience as a prosecutor,” Smith said.

Smith supervised a team of prosecutors who investigated and secured indictments of the then-former president in two separate probes: one for the retention of classified documents in Florida, and another for alleged interference in the 2020 presidential election.

The group of prosecutors who worked for him during his time as special counsel were also not interested in politics, Smith said.

“These are team players who don’t want to do anything but good in the world. They’re not interested in politics,” Smith said. “I get very concerned when I see how easy it is to demonize these people for political ends when these are the very sort of people I think we should be celebrating.”

Meanwhile, House Judiciary Committee Chairman Jim Jordan is requesting an interview with Smith as Republicans look to portray former President Joe Biden’s Justice Department as retaliatory against Trump.

The request sent Tuesday comes one week after Senate Republicans announced that the FBI, as part of Smith’s January 6 investigation, used court orders in 2023 to obtain the phone records of nine GOP lawmakers, a move the senators called “political weaponization.

Comey prosecution ‘reeks of lack of process’

At one point, Smith, who worked for years as a federal prosecutor, ripped into the Justice Department over how it’s operated under Trump, skewering it for allowing what he views as an unprecedented amount of politicization into the country’s justice system.

“Nothing like what we see now has ever gone on,” Smith said. “Process shouldn’t be a political issue, right? Like if there’s rules in the department about how to bring a case, follow those rules. You can’t say, ‘I want this outcome, let me throw the rules out.’”

Smith pointed to the federal charges brought last month against former FBI Director James Comey and the decision to drop the federal criminal case against New York Mayor Eric Adams, a Democrat, as two examples of how the department was operating out of the norm in Trump’s second term.

Federal prosecutors dropped the case against Adams, which was brought last year, after the mayor agreed to work with Trump in his effort to crack down on illegal immigration.

“Nothing like it has ever happened that I’ve ever heard of,” Smith said of the Adams case.

Comey, meanwhile, pleaded not guilty last week to two charges stemming from alleged false statements he made to Congress during testimony in 2020. A Trump-installed prosecutor in Virginia, Lindsey Halligan, secured an indictment against the former FBI director after Trump publicly complained the Justice Department wasn’t moving aggressively enough.

“This latest prosecution of the former director of the FBI. You know, there’s a process to secure an indictment,” Smith said. “There’s a process of predication, having some evidence before you do that … The career prosecutors, the apolitical prosecutors who analyzed this said there wasn’t a case and so they brought somebody in who had never been a criminal prosecutor on days’ notice to secure an indictment a day before the statute of limitations ended.”

“That just reeks of lack of process,” he said.

People are leaving because of politics

Smith, who has served under both Democratic and Republican presidents, said he believes the political appointees atop the Justice Department are acting differently than in previous administrations.

Career prosecutors are “being asked to do things that they think are wrong and because they’re not political people, they’re not going to do them,” Smith said.

“And I think that explains why you’ve seen the resignations, you’ve seen people leave the department,” Smith said. “It’s not because they’re enemies of one administration or the next. They’ve worked through decades for different administrations. It’s just they’ve been doing things apolitically forever. And when they’re told, ‘No, you got to get this outcome no matter what,’ that is so contrary to how we were all raised as prosecutors.”

Criticizes the Supreme Court’s immunity decision

The cases Smith brought against Trump were slowed down and eventually complicated by the Supreme Court’s consideration of whether Trump enjoyed broad immunity from criminal prosecution for his actions in office.

But Smith, who, when Trump was reelected, was in the process of trying to salvage the cases after the high court decided he had substantial presidential immunity, said Wednesday that there was a wide interpretation of immunity as the question made its way through lower courts and eventually up to the justices.

“The district court, the appellate court, and the dissent (at the Supreme Court) strongly weighted the rule of law considerations,” Smith said. “The majority opinion strongly weighted the other considerations, and to your point, and brought up your point of, ‘Well if you do this, there’s going to be this response.’”

Though Smith doesn’t agree with the Supreme Court’s ruling, he told Weissmann that his office never questioned whether they would follow the decision.

“I think a really important thing to understand here is, while I didn’t agree … we followed it. There was never a question that we were going to follow the law as the Supreme Court said the law now was,” Smith said.

But he said he was concerned that the court’s ruling was “tantamount to saying you can never prosecute powerful, high officials.”

“The problem is not prosecuting high officials who did something wrong when you do it according to the processes of law in your country,” he added. “It’s the retaliation. That’s the problem and that’s the thing that we should preventing.”

‘Tons of evidence’ that Trump kept classified documents willingly u/

While Smith was investigating Trump for his retention of classified documents, Attorney General Merrick Garland also appointed another special counsel, Robert Hur, to investigate Biden possibly having possession of classified documents as well.

Smith and Hur ultimately came to different conclusions, and Hur decided not to bring charges against Biden. Smith pointed out that the main difference between the two cases was the facts that were presented to prosecutors investigating the case.

“The difference is the facts. The rule of law allows for different outcomes when the facts are different. One of the major differences between the two cases is the obstructive conduct in the case that I investigated,” Smith said.

Smith explained to his audience that as a prosecutor trying to prove that someone retained classified documents, the prosecutor needs evidence that the defendant “willingly” kept possession of the information.

“To prove an illegal possession of classified documents, you need to show that you possessed the documents, or the defendant possessed the documents, willfully. And that means that he knew what he was doing was wrong.”

Smith said he had “tons of evidence” that Trump had willingly retained the classified documents, and that the investigation into Biden did not have the same kind of evidence.

“The evidence to not give the documents back when the government even tried to get them back before there was a criminal investigation … and then after the investigation started, still refusing to give them back, and then trying to obstruct the investigation, that helps prove willfulness,” Smith said. “That sort of evidence didn’t exist in the other case.”