The Hearing Room Former Special Counsel Jack Smith Testifies on Trump Investigations, Part 2
Former Special Counsel Jack Smith defends his use of witnesses like Cassie Hutchinson, despite her disputed credibility, citing Trump’s 2024 acknowledgment of wanting to go to the Capitol on January 6th. He clarifies subpoenas for Kevin McCarthy’s toll records and nine senators’ nondisclosure orders were legally approved to prevent obstruction, not violate the speech or debate clause. Denying political pressure, Smith insists cases were dismissed due to DOJ policy, but faces scrutiny over ties to Marshall Miller, a Biden administration official. Ultimately, the hearing exposes tensions between legal process and partisan narratives, with Trump’s false election claims and potential FBI entrapment still under question. [Automatically generated summary]
The fact that they used her in a prime time hearing and you won't rule out using her, or didn't rule out using her, putting her on the witness stand when everybody knows she wasn't telling the truth, that says it all.
That's the degree the left and Democrats were willing to go to get President Trump, putting on the witness stand someone everybody knows is making it up.
Everybody knows that.
And you are willing to do it.
By the way, you know how many times Cassie Hutchinson was mentioned in their report, the January 6th report?
Someone that the whole country knows wasn't telling the truth, and you were still considering putting her on the witness stand because you had to get President Trump.
And everybody can see that.
We better take a recess for votes.
We will resume.
As soon as boats are over, back here 10 minutes after, Mr. Smith, you guys can go back to the room that you were in.
Mr. Smith, over the past few years, Republicans have waged constant attacks on you.
Donald Trump has said you are totally compromised, a political hitman, a left-wing radical, a criminal, a fully weaponized monster, and that you should be considered mentally deranged and thrown out of the country.
Just this week, he called you a sick bastard.
Unfortunately, the rules of decorum prevent me from saying what I think of Donald Trump.
But he is not the only one to launch attacks against you.
Chairman Jordan has accused you of abusive surveillance and accused you and your team of partisan and politically motivated prosecutions.
Despite the mountain of evidence that you laid out in the special counsel's report and in your court filings, President Trump's supporters are convinced that the only reason your team tried to hold him accountable is because you have a vendetta against him.
I want to address these allegations today.
You have had a long and distinguished career with the Justice Department, including serving as the chief of DOJ's Public Integrity Section for five years.
While leading the Public Integrity Section, you led investigations and prosecution of public figures and political leaders from both parties, Republicans and Democrats.
During my time as the Chief of Public Integrity, I investigated cases involving both Republicans and Democrats.
The standard in all of those cases was the same.
Follow the facts and the law.
Didn't matter what party you were in.
It mattered the facts of the case.
In doing that, there were cases I brought against Democrats and cases I brought against Republicans.
There were also cases that I investigated and did not bring against Democrats and Republicans.
Party affiliation played no role in my investigations.
I can think of multiple cases of prominent members of Congress that we investigated who were Republicans, who, upon reviewing the law and the facts, I decided not to go forward in those cases.
And the same could be said with people on the Democratic side.
I've always tried to follow the facts and law in my career.
As a federal prosecutor and making a prosecutorial decision, you're guided by the federal principles of prosecution, which guide one not only to look at the facts and the law, but the federal interests.
And that is exactly what we did in this case as set forth in my final report.
I think it weakens the rule of law in our country because it weakens the mechanism for us to prosecute, among other things, corruption.
When there is political prosecutions targeting people because they are enemies of the President, the Department loses credibility and it can't do its job in all sorts of cases.
According to your deposition before this committee, it sounds like your problem was not determining if you had enough evidence to charge Donald Trump, but rather that you might have had too much evidence and struggled to determine how to present a clear narrative to a jury.
How would you characterize the evidence against Mr. Trump about inciting an insurrection against the laws of this country?
Well, with respect to presenting the case that we charged, one of the central challenges was trying to present that in a concise way because we did have so many witnesses.
Some of the most powerful witnesses were witnesses who in fact were fellow Republicans who had voted for Donald Trump, who had campaigned for him, and who wanted him to win the election.
These included state officials, people who worked on his campaign and advisors.
I will say, however, with respect to the charge of insurrection, we did not charge that, as I set forth in my report.
Well, I believe that there is courts have found that that was an insurrection and that there's a reasonable interpretation.
A reasonable prosecutor could interpret the evidence to support that charge.
I chose not to do that looking at the facts in the law.
I thought the charges we brought were appropriate given the evidence that we had.
Do you see people who are committing crimes because they continue to believe things that just aren't true?
That's paraphrasing Ronald Reagan, that liberals aren't stupid.
They just know things that don't happen to be true.
If the President believed that he was cheated in an election, that there was fraud or in some other way, a number of items led to his defeat when in fact he should have won according to the Constitution, does that make him a criminal?
Sir, no, no, that's a yes or no, please, Mr. Smith.
These people here are continuing to grapple constantly with things that aren't true, like socialism works, or that somehow everything the Republicans do is evil and everything they do is right.
They've never reached a conclusion in a typical partisan case in which we're not evil because we think something different and we're not wrong.
You understand the Constitution.
Do you understand the Bill of Rights, that someone has the absolute right to believe something whether it's true or not and to advocate for something whether it's true or not?
Do you understand that in addition to your oath to the Constitution, that that's one of the things the First Amendment allows for, isn't it?
Okay, so if you know that people have a right to opine, lobby for, assert, do everything they can legally to ask for people to make different decisions, then why is it you saw criminal conduct on behalf of a president who believed he didn't win?
Chairman Jordan and myself have something in common along with a number of others here.
We saw wrongdoing, and on January 6th, we voted not to confirm two states because they had violated the U.S. Constitution in how they selected who got ballots.
And yet, you're going to come here and say, oh, I just followed the law.
When you went after these people and you said, well, technically I can do that, you didn't see any selective nature or any separation of powers under the Constitution to spying on the activities and the conversations of the Speaker of the House.
To what end would conversations between the Speaker of the U.S. House, third or second in line to be the President, and the President, in what basis would it be any of your business other than you believe that there was a conspiracy without conspiracy as a basic premise?
You, like the President's men for Richard Nixon, went after your political enemies.
Maybe they're not your political enemies, but they sure as hell were Joe Biden's political enemies, weren't they?
They were Harris's political enemies.
They were the enemies of the President, and you were their arm, weren't you?
So you spied on the Speaker of the House and these other senators and so on and informed no one and in fact put in a gag order so they couldn't discover it.
If they were not subjects of a conspiracy investigation, why did Congress, a separate branch that you under the Constitution, have to respect, why is it that no one should be informed,
including the judges, as you went in to spy on these people, did you mention that you were spying on, seeking records so you could find out about when conversations occurred between the U.S. Speaker of the House and the President?
Did you inform the judge or did you hold that back?
And there will be due time to answer the question.
Would you please put my time back and let me finish this?
Mr. Smith, I asked you a question and you were not responsive to it, and I want you to be responsive to it.
Did you, whether you think it was legal or not, whether you think it was right or not, did you withhold the name of Kevin McCarthy, Speaker of the House, when you were seeking records on Kevin McCarthy, the Speaker of the House, or Jim Jordan, the Chairman of this committee?
You know, earlier the chairman spent a lot of time talking about Cassidy Hutchinson, who we know was just one of many witnesses.
It's important to note that there was testimony that she was told something by Mr. Ornado, not that she had personal knowledge, and of course Mr. Ornado was of very questionable veracity.
We had testimony from a Metropolitan Police Department official about an argument, a big argument that the President was having about going to the Capitol and the fact that the vehicle was delayed going back to the Capitol while that argument occurred.
But having said that, I want to focus on something my colleagues across the aisle seem to want to ignore, the fact that your investigation into President Trump's attempt to overturn the 2020 election was built on testimony from members of the Republican Party.
In fact, last week, the New York Times published grand jury transcripts from Georgia that show the same pattern in Trump's Georgia criminal case.
Georgia's Republican Attorney General Chris Carr testified that he told, quote, and this is a quote, we're just not seeing the things that you are seeing.
And the late Georgia House Speaker David Rawlson, also a Republican, testified that Trump's fake elector scheme was, quote, the craziest thing I've heard.
And then there's Senator Lindsey Graham, one of the President's closest allies.
In his secret grand jury testimony, Senator Graham told the jurors, quote, I have told him more times than we can count that he fell short, unquote.
And then he said this, quote, if you told him Martians came and stole votes, he'd be inclined to believe it.
Martians, that's from Senator Graham speaking under oath.
So here's my question.
Mr. Smith, in your deposition with this committee, you testified, and here's a quote, our case was built on, frankly, Republicans who put their allegiance to the country before the party.
Also, that the President's closest allies are telling him that his claims of election fraud are wrong.
So I'm just wondering, can you explain what you meant in your deposition, that it was Republicans who were putting their allegiance to their country ahead of their party?
There were witnesses who I felt would be very strong witnesses, including, for example, the Secretary of State in Georgia, who told Donald Trump the truth, told him things that he did not want to hear, and put him on notice that what he was saying was false.
These were people who knew how the elections were conducted in these states.
And I believe that witnesses of that nature, witnesses who are willing to tell the truth, even if it's going to impose a cost on them in their lives, my experience as a prosecutor over 30 years is that witnesses like that are very credible and that jurors tend to believe witnesses like that because they pay a cost for telling the truth.
In terms of the grand jury testimony that's now been released, the fact that Donald Trump, according to Senator Graham, would believe that Martians stole the election, what does that tell you about Trump's state of mind?
That statement is consistent with what we found in our investigation in that our investigation revealed that Donald Trump was not looking for honest answers about whether there was fraud in the election.
He was looking for ways to stay in power.
And when people told him things that conflicted with him staying in power, he rejected them.
Or he chose not even to contact people like that who would know if the election was done properly in the state.
On the other hand, when individuals would say things that would allow him to stay in power no matter how fantastical, he would latch on to those.
That pattern, over time, we felt was powerful evidence that he, in fact, knew that the fraud claims he was making were false.
You know, who were some of the Republican witnesses who told you that President Trump told President Trump that his claims of election fraud were false?
They ranged from people on his campaign team who had wanted him to win, were employed to help him win the election.
They included state officials, state Republican officials who wanted him to win, voted for him, campaigned for him, asked him to provide, asked him and his co-conspirators to provide evidence to support their claims, and invariably they never did.
It included officials, advisors, people he worked with in the White House who he relied upon for important decisions and who he trusted in other contexts.
We felt we had strong evidence from a variety of sources.
You were collecting months' worth of phone data on the Republican Speaker of the House, the leader of the opposition, right after he got sworn in as Speaker, all around the time of a major vote.
That sounds like a flagrant violation of the speech or debate clause to me, and I think most people agree with me.
And Speaker McCarthy had no recourse, did he?
Because you issued a nondisclosure order ensuring that neither he nor any of the American people knew about these subpoenas.
I think that you were using, this is clearly in reference to Speaker McCarthy, and you were using clearly false information to secure a non-disclosure order to hide from Speaker McCarthy and from the American people the fact that you were spying on his toll records.
But I've got more, so let's move on.
In May of 2023, you also issued subpoenas for toll records of nine U.S. Senators and an additional representative.
Is that right?
In May of 23, we did issue sub- You did, and there were non-disclosure orders in conjunction with those subpoenas as well, right?
Your own analysis says that you knew there was a risk you were violating the speech or debate clause.
I have it right here.
This is an email from John Keller at Public Integrity Section to your team.
As you are aware, quote, as you are aware, there is some litigation risk regarding whether compelled disclosure of toll records of a member's legislative calls violates the speech or debate clause in the D.C. Circuit.
Mr. Smith, it's great that you've been allowed to come here and testify to the American public.
Is there anything you'd like briefly to discuss that Mr. Gill brought up on the reasons why you needed those phone records and the limitations that you thought might have been on you and the prosecution to risk the investigation?
And I would begin by pointing out that the email that was referenced wasn't a justification from my office.
It was an email from the Public Integrity Section to my office approving the subpoenas.
The subpoenas that we secured, we secured with nondisclosure orders from a judge because I had grave concerns about obstruction of justice in this investigation, specifically with regards to Donald Trump.
Not only did we have the obstruction of justice that we were investigating in the classified documents case, but I was aware during the course of our investigation of targeting of witnesses during the course of the conspiracy itself.
There were election workers who had their lives turned upside down and received vile death threats because they were targeted by Donald Trump and his co-conspirators.
I had a duty to protect witnesses in this investigation.
That risk, that threat to witnesses was only confirmed when we went forward in this case and Donald Trump suggested that one witness should be put to death and then also issued a statement to the effect of, if you come after me, I'm coming after you.
In my mind, I can't think of a more direct threat to witnesses and individuals involved in that proceeding.
Given that sort of threats, it was, in my view, completely appropriate to protect the integrity of the investigation, to protect against destruction of evidence, and to protect the witnesses in our case.
You felt that you had a case that was one that you would win beyond a reasonable doubt and a moral certainty.
Is there anything in your facts that you had that you would have used at trial that you believe has not been presented to the public in the past or have been misrepresented to the public?
Is there anything essential facts that you had that you felt would have resulted in a conviction of the President on the charges that he was indicted upon?
I think my report, the report of our case, the final report, summarizes the evidence, I think, in a way that gives a fair rating of the strength of the case.
I was given the independence to conduct my investigation, and I came to the decision to bring charges in this case without undue influence from anybody in the department.
I think you're a great American, and you came out of this as being somebody who people can respect and look up to in a fashion that we should be instilling people's desire to go into justice, to go into law, and to go into government.
You're an example of the type of person they should follow.
So after E.D. New York, did the two of you ever work together again prior to becoming special counsel?
According to the public bios for you and Mr. Miller, you overlapped at DOJ from 2014-15 when you were chief of DOJ's Public Integrity Section and Mr. Miller was chief of staff for DOJ's criminal division.
So in multiple conversations with your friend Marshall Miller, he never once tipped you off that the Attorney General or Deputy Attorney General have you on the short list for special counsel?
Just to tie all this together, you've known Mr. Miller since you were both AUSA in New York.
You stayed in touch over a 20-year career in federal government.
He gets a job with the Biden administration, and just a few short months later, you're offered the role of special counsel.
I'm having a hard time believing that this is some big coincidence and that there wasn't a back and forth on the special counsel.
Well, maybe you never received directives explicitly from the AG or the Deputy Attorney General, but was Marshall Miller, did he become a two-way conduit throughout the investigation with DOJ?
What I said was that he was, I think you asked if he was a conduit of information.
He was present, to my recollection, at meetings, briefings that I had with the Attorney General and Deputy Attorney General during my time as special counsel.
I mean, I don't want to assume anything, but Mr. Miller wanted you in that position, not because you're necessarily the best lawyer he ever met, but because of the long-term friendship that you have with him.
So he knew that you would pursue, I mean, he had to have an idea that you would pursue exactly what the Biden administration wanted, which was criminal charges against President Trump.
And while we are deposing Marshall Miller, maybe we can depose Donald Trump about why he chose his personal lawyer to be the head of the DOJ.
On January 6, 2026, the fifth anniversary of the insurrection, the White House launched a taxpayer-funded website that attempts to rewrite history about what happened on that day of infamy.
On January 6, 2021, there was an insurrection at the United States Capitol that resulted in a police officer dying the next day, another four officers dying by suicide in the months thereafter, with at least 140 police officers being injured by the insurrectionists, with 15 of them requiring hospitalization.
And I'm proud that we have four former officers as well as on-duty Capitol Hill police officers here today.
Mr. Smith, I want to ask you about this website because the Trump administration is using taxpayer dollars to lie to the American people about the events leading up to and the events taking place on January 6, 2021.
For example, this Trump propaganda site claims that the 2020 election was, quote, stolen.
Mr. Smith, did your investigation uncover evidence sufficient to prove beyond a reasonable doubt that Donald Trump knew that his claim that the election was stolen was false?
And did your investigation uncover evidence sufficient to prove beyond a reasonable doubt that Donald Trump publicly claimed that the 2020 election was stolen from him while he privately acknowledged that he had lost the election?
But yet here we see that on the fifth anniversary of the insurrection, the Trump White House propaganda machine is still promoting the stolen election theory on this government webpage with a text box titled, quote, fraudulent election, stolen election certified, end quote.
The site also has a subsection reading in part, quote, FBI entrapment operation exposed.
Mr. Smith, did your investigation develop any evidence to support the allegation that the FBI entrapped insurrectionists into committing crimes on January 6?