From The New York Times, I'm Michael Barbaro.
This is The Daily.
On Thursday, three years after his appointment as special counsel, Jack Smith finally delivered the legal argument against President Trump that he was never allowed to make in court.
Today...
What Smith told Congress and why his message is likely to make him Trump's next target for prosecution.
It's Friday, January 23rd.
Glenn, can you just describe exactly where you are?
It's somewhere in the Capitol complex.
Yes, I am in the Byzantine maze of the United States Capitol.
I've just come out of the hearing room where Jack Smith spent approximately four, four and a half hours being grilled by the House Judiciary Committee.
Thank you for sticking around after the hearing to talk to us.
We appreciate it.
I want to begin with the context for this, hearing the backstory behind why we're finally hearing from Jack Smith, a special counsel who ended up overseeing these two sprawling criminal investigations into President Trump in between his first and second term.
And it just seems worth saying this is a prosecutor on whose shoulders, in a lot of ways, rested the very question of whether Trump could ever be president again, or might he have ended up in prison.
I mean, he's just so central to the entire story of the Trump era in a lot of ways.
Look for about a year, late 2022 to late 2023.
Jack Smith was arguably one of the most important figures in the country.
And his road to this committee room was a pretty torturous path.
In late 2022, just to refresh people's memories, Merrick Garland, then the attorney general is really in a corner.
He can't personally investigate all the allegations against Donald Trump, because he was appointed by Trump's political adversary, Joe Biden.
Right.
Like a classic conflict of interest.
Right.
So he appoints Jack Smith, who at this point was serving as a war crimes prosecutor in The Hague, to take over the two investigations into Donald Trump.
One of which is a little bit more amorphous, but probably more consequential.
Whether or not Donald Trump sicked the mob on the U.S.
Capitol on January 6, 2021, and attempted to obstruct the election of Joe Biden as president.
The other one was more simple.
So simple.
In fact, it's defined by one image, this picture of boxes in Donald Trump's bathroom at Mar-a-Lago of classified material.
Right.
One is basically did he conspire to overturn an election?
And the other is did he conspire to hide classified documents that he allegedly knew the government wanted back?
Exactly.
So Jack Smith throws himself into these two cases.
A lot of the evidence had already been collected before he ever walked in the door, but he was known as a hard-driving prosecutor, more like a manager.
Think of him as like a baseball manager who has a very aggressive managing style.
He kind of takes the players that he inherited, but he moves them forward propulsively because there is a sense that he's got to move fast before the political season catches up to him.
Long story short, he doesn't really make it.
He successfully gets two grand jury indictments, but then the investigations timetable slams into the timetable of the 2024 election.
Right.
Donald Trump gets elected and then Smith has to drop both cases because of the DOJ policy against prosecuting a sitting president, because it would interfere with the president's capacity to govern.
Mm hmm.
So Donald Trump gets sworn in as president, and Jack Smith disappears just about as quickly as he popped onto the scene.
He keeps a low profile.
He knows he's a target of Trump and Trump supporters.
He doesn't even do anything in terms of his career.
He just kind of stays at home, keeps his head down, tries to avoid the spotlight, doesn't want to give Trump or anybody in Congress any justification for going after him, and essentially vanishes.
I think a few of us imagined that he would pretty much remain disappeared under a Republican-controlled government, because they would rather the entire chapter he represented just be buried in the history books.
Yeah, you'd think so, right?
But Donald Trump can't let this go.
Jack Smith is the person who represents what Donald Trump thinks.
Is this big, grand persecution against him?
It's the whole rationale and the energy behind his reelection campaign and his drive for vengeance against his enemies.
So Trump keeps picking at it, picking at it, going on, true social, accusing Jack Smith of being deranged.
This is one of the real burning issues for him.
And let me tell you, there are a lot of Republicans on Capitol Hill who never want to talk about this again and think that this is a big mistake, as they head into the midterms and frankly think that it's a self-destructive impulse on the part of President Trump.
But he insisted on it.
And ultimately, that is why Jack Smith testified in public today.
And when you say Trump insisted on it, you mean Trump wanted Smith to be brought before Congress.
Yes.
Republicans, I think, would have been satisfied with Jack Smith testifying behind closed doors.
But Donald Trump made a point of saying that he wanted Jack Smith, his enemy, to testify in public, because Trump presumed that this would be a great opportunity to attack him.
And perhaps Smith would make a mistake in the course of this testimony.
That would warrant what Trump wanted most of all, which is a criminal prosecution of Jack Smith.
But as risky as this testimony no doubt must have seemed for Jack Smith as he prepared for it, perhaps he also saw it as an opportunity to finally make the case that he and his team spent so much time building but were never given a chance to ever lay out.
Yeah, I mean, what he really wanted to do was to stand in a courtroom and make this case to a jury.
This isn't quite the same thing, but it gave him an opportunity to make a lot of the points that he would have made in court.
Smith wasn't the only one incurring risk here.
House Republicans were very concerned about giving him a public forum to make the case against Trump, because Smith is the best informed, the most disciplined and and most credible accuser Trump has really ever faced.
So everybody involved kind of viewed this as a trial.
The Republicans wanted to make the case against Smith, to impugn his motives, to sort of color some of these public disclosures in such a way that it made Smith look like he was in cahoots with the Biden administration to destroy Trump, even though they didn't really have evidence to prove that.
But for Democrats it was another opportunity to put Trump back on trial and actually to identify Republicans on the committee as kind of unindicted co-conspirators who enabled Donald Trump to get away with this.
And we're now, in the view of Democrats, unconscionably defending him by attacking Jack Smith.
Well, Glenn, with all that in mind, take us into the actual hearing room on Thursday morning.
So you have this scene, which you've seen a million times on TV packed committee room, lots of cameras around, people waiting for Smith to show up.
And he kind of walks in.
And let me just point out, he strikes a different figure than most politicians or even prosecutors.
He is a triathlete.
He's dressed in this slim cut blue suit.
He has this almost Old Testament face with a salt and pepper beard.
And his general vibe is kind of stony and unapproachable.
Hmm.
So he stands around awkwardly for a couple of minutes until he turns around and notices these four Capitol Police officers in the front row who were attacked on January 6th.
And suddenly he smiles, makes eye contact with them.
And that seemed to fortify him.
Right, because it felt like those former Capitol Police officers were there to perhaps support him.
Exactly.
So he sits down at the witness table.
We welcome our witness today.
We'll begin by swearing you in.
Would you please rise and raise your right hand?
Then he gets sworn in, and a few minutes later, he begins to deliver his opening statement.
Chairman Jordan, Ranking Member Raskin.
Members of the committee, thank you for the opportunity to discuss my work as special counsel.
For nearly three decades I've served as a career prosecutor in both Republican and Democratic administrations.
He starts off by going through his resume.
I am not a politician, and I have no partisan loyalties.
My career has been dedicated to serving our country by upholding the rule of law.
He emphasizes that everything he has ever done in his career has been apolitical and not motivated by any partisan animosity.
As I testify before the committee today, I want to be clear.
I stand by my decisions as special counsel, including the decision to bring charges against President Trump.
And then he gets to the heart of his argument.
Our investigation developed proof beyond a reasonable doubt that President Trump engaged in criminal activity.
One that Donald Trump, according to the evidence that he collected, was guilty in both cases definitively, in his view.
And then he makes the larger point about rule of law.
If asked whether to prosecute a former president based on the same facts today, I would do so regardless of whether that president was a Democrat or a Republican.
No one.
No one should be above the law in this country, and the law required that he be held to account.
So that is what I did.
To have done otherwise on the facts of these cases would have been to shirk my duties as a prosecutor and as a public servant, of which I had no intention of doing.
That holding Trump accountable, which obviously he was not able to do, was fundamental for ensuring that people in power played by the same rules that all other Americans played by.
Mm-hmm.
Right, he seems to be doing a number of things here simultaneously.
He's very clearly saying that The case that we built is sound.
And in his mind, would have led to a conviction.
And he's linking this case that never got to be, that never was to this bigger question of whether, in the Trump era, the rule of law is going to survive.
A hundred percent.
He's defending the evidence that he collected and his process for collecting that evidence, but he's also defending his decision to prosecute.
He's defending the principle upon which the Trump prosecutions were based that no one is above the law and that letting Trump off the hook would embolden Trump to violate the law if he ever regained power.
Right.
And then after Smith is done comes the questioning from members of this oversight committee.
And I wonder Glenn, if we can start with the Republicans, who are, of course, running this entire thing.
So Michael, the predicate here is that the Republicans can't prove their one big point, which is that Jack Smith knowingly colluded with the Biden administration to destroy Donald Trump.
They don't have any evidence of that.
So, in the absence of that kind of information, they're going after smaller elements of Smith's investigation.
And a good example of that is Lance Goodman.
The gentleman from Texas is recognized for five minutes.
This Republican from Texas.
Mr. Chairman. asked about this document that Smith signed attesting that he was sworn in.
You signed it on the 20th of November 2022, but there was no witness, which I mean you have to agree.
It's a little odd.
Months later, Smith had another swearing in, so couldn't ask Smith why he was sworn in twice.
So why did you take the oath of office again on the 14th of September of the following year, when you say you took the office in November 2022 of 2022?
Why'd you need to do it twice?
My recollection is that I took the oath of office as you said, it was the 18th of the 20th and felt I was under the oath of office.
I believe, if you have it in front of you, I think I signed an oath.
You signed it, but there was no witness.
There was supposed to be either notarized or a witness, and apparently Attorney General Garland thought it was significant enough to have you do another oath 11 months later.
That's strange, right?
I don't know why they asked me to sign it again.
I don't recall ever discussing this issue with Attorney General Garland.
Well, that is just wild to me.
So they weren't only trying to undermine the legitimacy of his actions, but they were actually attempting to undermine the legal legitimacy of his appointment.
How much money did you spend in the investigating President Trump?
Another line of questioning revolved around a recent revelation that the FBI paid informants to examine some of the people in the crowd on January 6th.
We know you gave $20,000 to someone.
It just got reported last week.
How much more money did you pay confidential people, people we don't know about, with American tax money going after the guy we elected president?
With the suggestion, of course, that Smith had to pay off people to collect dirt on his investigative targets.
My recollection regards the The $20,000, which was not a payment from me.
It was me approving a payment by the FBI to a confidential human source who was reviewing video and photographic evidence.
Who's the source?
I do not know the identity of the source.
How many other payments went to this source or other sources?
The most substantial issue the Republicans raised, and the one they spent the most time on at the hearing, was this matter of the toll records, the metadata that Jack Smith and his team obtained on phone conversations between Trump, Trump's team, Rudy Giuliani, and nine lawmakers on Capitol Hill that Trump was pressuring to overturn the 2020 election.
And Glenn, what makes Smith's efforts to get that data so controversial for these Republicans?
And perhaps here you do need to do just a little bit of explaining about what exactly Smith did, how he did it.
So toll records are not wiretaps of phone calls, as some Republicans have claimed.
What they are are just simple records of calls the duration, the two phone numbers involved, the time that they took place.
Smith's team wanted this information so that they could establish a timeline of efforts to pressure lawmakers into overturning the 2020 election.
But they also did something else.
Smith's team asked a federal judge in Washington not to disclose to the targets that he was obtaining this information.
Now, there are a bunch of investigative reasons for doing that, according to former prosecutors.
But Republicans seized on this to make the point that Smith's team were doing something shady underhanded and that they had already concluded that they were going after President Trump.
Mr Smith, in January of 2023, did you subpoena then-Speaker of the House Kevin McCarthy's toll records?
Yes, sir, we did.
Two Republicans from Texas really drove this point home.
One of them, Brandon Gill, really put Smith on the hot seat.
How many days after Kevin McCarthy was sworn in as Speaker did you subpoena his records?
I don't recall, but those two things had nothing to do with one another.
It was 16 days after becoming the highest-ranking Republican in the House of Representatives.
You subpoenaed his toll records.
But an even more extraordinary moment came when Chip Roy, his colleague, asked Smith why Smith's team had obtained his own phone records.
Did you target my records and subpoena my phone toll records?
My understanding is your records were subpoenaed by prosecutors before I became special counsel.
I'm thankful for the great staff who discovered the email, where I learned for the first time a few weeks ago that my phone records were indeed targeted.
We called AT&T and we've learned that they were given to the Department of Justice.
As this email indicates, this happened four years ago, in May of 2022, and I couldn't object because I didn't know.
I didn't know until about three weeks ago.
Basically, they're asking, did Smith and his staff spy on Republican members of Congress?
Right.
This really felt like the one moment where Republicans really had Smith on the defensive.
You also sought orders from judges making it so those who were having their records seized would not know about it.
And you even didn't tell those judges that it was members of Congress whose records you were going after.
If you sought to do that today, would you be able to get away with that?
When we secured these toll record subpoenas, it was done consistent with department policy.
You're correct in that that policy has since changed.
They changed the policy based upon the actions that you took.
Glenn, as best you can tell, did this Republican strategy work?
I'll tell you this.
Smith's discipline and that's kind of the hallmark of his management style really paid off for him.
There was this moment where Kevin Kiley, a Republican from California, asks Smith, Do you believe that you made any mistakes?
Do you have any regrets as to how you conducted this investigation?
Can you tell me any kind of mistake that you made?
Is there anything that you regret?
If I have any regret, it would be not expressing enough appreciation for my staff who worked so hard on these investigations.
Smith wasn't going for that.
All he responded with was that he hadn't thanked his staff sufficiently.
He seemed determined not to give Republicans an inch.
But when Democrats questioned him, he was a good deal more expansive.
We'll be right back.
Glenn, talk us through how the Democrats approach Smith with their questions.
The Democrats basically wanted to paint Smith as a hero.
I want to thank you for your service.
I think you're a great American.
As somebody who risked Donald Trump's ire—
Your willingness to speak directly to us and to the American people about your investigation is professional, is courageous and it's patriotic.
Somebody who is willing to stand up to Donald Trump and hold him accountable.
Please know that I and my colleagues on the Democratic side, and even my Republican colleagues when they speak privately, have nothing but respect and appreciation for what you tried to do and how you did it.
You, unlike many here, are a man of honor.
And they were also eager to protect him and to clean up any doubts people might have about his activities.
Let's go to the toll records since that's been raised, Mr. Smith.
And that was why they dove right into this question of the toll records that the Republicans brought up.
Right, those phone records.
Jamie Raskin, who is the top Democrat on the committee, jumped in to give Smith the chance to explain himself.
It's perfectly lawful what you did.
Explain why did you want those toll records?
The conspiracy that we were investigating.
It was relevant to get toll records to understand the scope of that conspiracy, who they were seeking to coerce, who they were seeking to influence, who was seeking to help them.
And to make the point that all of this was just standard investigative practice.
In conducting a criminal investigation.
Securing non-content toll records, as you described, is a common practice in almost any complex conspiracy.
Right.
And, as I recall it, Congressman Ted Lieu, another Democrat, basically does the same thing.
Gives Smith a chance to explain why it is he would subpoena the phone records of sitting members of Congress.
I just want to say a little bit about what the Republicans have brought up about these phone toll records.
Do you believe the Speaker of the House is above the law?
No, I don't believe anybody should be above the law.
That's right.
And members of Congress are not above the law, right?
No.
Yeah, that's right, because we're not.
And what Republicans are going to argue is somehow if you're doing an investigation, you can't do stuff to senators or members of Congress.
Get out of here.
Lou at this moment makes the basic point that you don't share all these details about investigations because you need secrecy to do your job.
It's so stupid.
I'm a former prosecutor.
You'd never, in an investigation, go and try to get someone's toll records or phone records and then tell them hey dude, we're about to get your phone records.
Of course you wouldn't tell them.
They wanted to give Smith the chance to rebut all of these Republican accusations which have been out in the ether for weeks, that somehow all of this stuff was sinister.
This was the basic strategy of Democrats to kind of walk Smith through, point by point, the conduct of his investigation, to kind of demystify it and to give him an opportunity, which he really hasn't had before, to explain why he did what he did.
And their other objective was to move the spotlight off of Smith and back onto Donald Trump.
My Republican colleagues keep trying to rewrite history.
They claim that somehow Trump's words and actions did not legally rise to the level of criminal activity that he did not directly cause violence at the Capitol.
And so I want to set that record straight with you right now.
And the Democrat who really drove this home was Congresswoman Jayapal from Washington, who essentially asked Smith to go over his indictment of the president point by point by point by point.
Did your investigation find that Donald Trump attempted to manufacture fraudulent slates of presidential electors in seven states that he lost?
Yes.
Did he pressure state officials to ignore true vote counts in those states?
Yes.
Did he spread lies and conspiracies to his followers to make them believe that the election had been illegally rigged against him?
Yes.
Did he pressure DOJ officials to stop the certification of the election?
He did.
And Jayapal, answer questioning?
By asking Smith probably the most important question of all.
How would you describe the toll on our democracy if we do not hold a president accountable for attempting to steal an election?
What this all means to democracy and the rule of law.
My belief is that if we do not hold the most powerful people in our society to the same standards of the rule of law, It can be catastrophic.
It sends a message that those crimes are okay, that our society accepts that.
I believe that if we don't call people to account when they commit crimes in this context, it can endanger our election process, it can endanger election workers and ultimately, our democracy.
Glenn, it feels like I should probably explain to the listener that neither the Democrats nor Republicans really spend all that much time talking about the second Smith investigation into classified documents kept at Mar-a-Lago.
That's in part because of a gag order that a federal judge issued.
That made it pretty hard for Smith to talk about that case.
So it's not like we're deliberately avoiding the subject.
The lawmakers themselves avoided it.
Absolutely.
At a certain point, as this hearing is starting to wrap up, President Trump does something kind of dramatic that puts him in a real sense in this hearing room.
It was like a real wow moment that really undercut the Republican argument that Smith was totally unjustified in investigating Trump.
He goes on Truth, Social and And he essentially orders Attorney General Pam Bondi to investigate and prosecute Smith.
You can't make this stuff up.
It's as if Trump himself had elbowed his way into the hearing room to make the point that he wanted these guys to go after Smith even harder.
I don't know if you're aware of this that President Trump is live tweeting live.
I guess you'd call it truth socialing As we speak.
Are you aware of this?
About this hearing?
No.
Adding to the surreality of this moment, a Democratic lawmaker tells Smith that this is just happening.
And then a few minutes later, another Democrat gives him a chance to respond to it.
I will not be intimidated.
I think these statements are also made as a warning to others what will happen if they stand up.
And Smith basically says, it doesn't matter to me.
The president can intimidate me like he's intimidating other people.
We followed the facts and we followed the law, and that process resulted in proof beyond a reasonable doubt that he committed serious crimes.
I'm not going to pretend that didn't happen because he's threatening me.
And Mr Smith, do you believe that President Trump's Department of Justice will find some way to indict you?
I believe that they will do everything in their power to do that, because they've been ordered to by the president.
We'll take it all under advisement, as we said.
That concludes today's hearing.
We thank the witness for appearing before the committee today.
Without objection, the hearing is adjourned.
Eventually, of course, this hearing does come to an end, as you said, after four and a half hours of back and forth.
It was a long hearing.
And when it ended, I wonder how you were thinking about the two strategies of the Democrats and Republicans and their competing efforts to hold these kind of trials the trial of Jack Smith and the trial of Donald Trump.
It's tough to do the winners and losers thing at congressional hearings, but I'll tell you this.
I think Republicans that I talked with after the thing ended don't think that they really succeeded in diminishing Jack Smith's stature or really making the case for prosecuting him.
Now all that stuff might happen anyway, but I get the general sense that Democrats felt very positively about Jack Smith's performance in the spotlight and Republicans were more meh.
Glenn.
For me anyway, there was this really striking irony hovering over this whole hearing, which is that throughout it, you had Republicans claiming that Jack Smith was this out-of-control prosecutor who out to get the target of his prosecution.
And there isn't really evidence of that.
I mean, he was a special counsel, so some independence was built into his very job.
But suggesting that by Republicans is a little hard to accept with a straight face at the moment, given that President Trump, a Republican, is totally redefining the relationship between the president and the Department of Justice and very explicitly targeting people for prosecution and more or less saying, even if there's not much evidence that they should be prosecuted, that they should be indicted.
And that's actually happening.
And so that just seemed to be very present and Right.
In this hearing.
This is why Jack Smith is so important to Trump.
Trump needs to prove that Jack Smith acted in bad faith or he can't really justify turning the Justice Department right now into the implement of his vengeance campaign against his enemies.
But the hearing ended where it started.
There isn't any concrete evidence that Jack Smith colluded with the Biden administration or anyone else to go after Trump politically.
He may have made a misguided judgment in prosecuting Trump, but that's not what was litigated here.
This hearing was about Republicans proving that Jack Smith had done Donald Trump dirty, and it doesn't seem like they were able to accomplish that on Thursday.
And that...
Just makes it harder for Donald Trump to justify obliterating the independence of the Justice Department and the FBI to go after the people that he has identified as targets.
Including, if you believe Trump's threats, Jack Smith himself.
Exactly.
Well, Glenn, thank you very much.
Thank you.
We'll be right back.
In a blunt speech on Thursday, Ukrainian President Volodymyr Zelensky denounced European leaders for failing to stop Russian aggression and for their timid response to President Trump's threats of seizing Greenland.
Instead of taking the lead in defending freedom worldwide, especially when America's focus shifts elsewhere, Europe looks lost.
Trying to convince the US president to change.
But he will not change.
The speech amounted to a stinging rebuke of Zelensky's own allies, since European governments have replaced the United States as Ukraine's most reliable partner in its battle against Russia.
And The Times reports that a major winter storm arriving this weekend will blanket the American South with ice and dump as much as a foot of snow in the Northeast.
The fact that we have roughly 1800 miles nonstop of winter storm alerts watches warnings, from Arizona all the way to the East Coast, shows just how big this storm is.
It's.
The massive storm is expected to affect about half the country's population, hitting states like New Mexico and Colorado today, Texas and Tennessee on Saturday, then Washington DC and New York on Sunday.
So, given the forecast, I'd say bundle up, make sure you have everything you need for about three to five days off the grid.
Make sure you're taking care of elderly, vulnerable neighbors, loved ones and ultimately, having a plan to hunker down for days on end.
Today's episode was produced by Alex Stern, Stella Tan, Mary Wilson, and Muj Zaydi.
It was edited by Brendan Klankenberg and Michael Benoit, contains music by Dan Powell, Rowan Emisto and Pat McCusker, and was engineered by Alyssa Moxley.
That's it for The Daily.
I'm Michael Maduro.
See you on Sunday.
