Special counsel report condemns Trump’s ‘criminal efforts to retain power’ in 2020
(CNN) — Special counsel Jack Smith and his team believed they could have secured a conviction against Donald Trump over his attempt to subvert the 2020 election, according to a report released early Tuesday that details the president-elect’s “criminal efforts to retain power.”
The more than 130-page report spells out in extensive — if largely already known — detail how Trump tried to overturn the 2020 election. Smith’s team states in no uncertain terms that they believed Trump criminally attempted to subvert the will of the people and overturn the election results.
“As set forth in the original and superseding indictments, when it became clear that Mr. Trump had lost the election and that lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power,” the report states.
The transmission of Smith’s January 6 findings came after the president-elect and his allies were unable to stop the department from releasing it. The report was submitted to Congress and released early Tuesday by Attorney General Merrick Garland after a court hold blocking its release expired at midnight.
Trump and his allies’ court maneuverings did, however, slow the report’s release as the clock ticks toward Trump’s January 20 inauguration, as well as upend the department’s plans to release volume two, which covers the classified documents investigation. The attorney general has decided not to publicly release that second volume of the report after the special counsel recommended against its publication.
Volume one of Smith’s report marks the special counsel’s final official word on his investigation into January 6, 2021, and the actions by Trump and his associates before then to interfere with the peaceful transfer of power.
It contains a factual recitation of Trump’s attempts to overturn the 2020 election, including his “pressure on state officials,” the “fraudulent electors plan,” his “pressure on the Vice President” Mike Pence, and a section on how Trump’s supporters attacked the US Capitol on January 6. In effect, it mirrors the landmark federal election subversion indictment that Smith brought against Trump in 2023, retooled in 2024 after the Supreme Court’s immunity ruling, and ultimately withdrew after Trump’s victory in the November election.
“Until Mr. Trump obstructed it, this democratic process had operated in a peaceful and orderly manner for more than 130 years,” Smith wrote, referring to Congress’ certification of the Electoral College results, under the Electoral Count Act of 1887.
When it came to his duty as special counsel and the work of investigating and prosecuting Trump, Smith wrote that his “office had one north star, to follow the facts and law wherever they led. Nothing more and nothing less.”
Of the failed prosecution of Trump, Smith said that prosecutors “cannot control outcomes” and can only do their jobs “the right way for the right reasons.”
The final decision to prosecute the former president, he said, was his alone. “It is a decision I stand behind fully,” Smith wrote. “To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant.”
Smith concluded that while the Justice Department interprets the Constitution as not allowing the prosecution of a sitting president, his office “assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
Trump, for his part, slammed the special counsel’s report as “fake findings” in overnight posts on his Truth Social network. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” the president-elect wrote in part. “THE VOTERS HAVE SPOKEN!!!”
Trump was not exonerated, Smith says
Smith brought four charges against Trump in the 2020 election probe. But the case suffered setbacks culminating in the Supreme Court’s presidential immunity ruling last summer that set a very high bar for prosecuting a former president for his conduct in office. The special counsel dropped the case against Trump altogether after voters in November decided to return him to the White House.
In a private letter to Garland on January 7, made public as part of the report, Smith condemned Trump’s claim of complete exoneration as false and said his office “stands fully behind” the merits of the criminal cases that he filed.
Smith had been responding to a prior letter from Trump’s lawyers, in which they claimed he was fully exonerated because Smith withdrew both criminal cases after the election.
“Mr. Trump’s letter claims that dismissal of his criminal cases signifies Mr. Trump’s ‘complete exoneration.’ That is false,” Smith wrote to Garland.
Smith continued: “The (Justice) Department’s view that the Constitution prohibits Mr. Trump’s indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution — all of which the Office stands fully behind.”
The special counsel’s office weighed bringing an insurrection charge against Trump but decided against doing so, with the scant case law for such a prosecution a major factor in that decision.
While courts have been describing the US Capitol assault as an “insurrection,” the special counsel’s office was “aware of the litigation risk that would be presented by employing this long-dormant statute.”
Of particular concern was that the special counsel couldn’t find a past case of prosecuting someone “inciting, assisting, or giving aid or comfort to rebellion or insurrection.” Instead, the rare, previous prosecutions dealt with someone who directly engaged in an insurrection, according to the report.
Smith said of the evidence against Trump: “However strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first.”
Smith’s office also looked at other possible charges, according to the report. The prosecutors opted against a charge alleging conspiracy to impede or injure an officer of the United States because of insufficient proof that the co-conspirators “specifically agreed to threaten force or intimidation against federal officers.”
A charge under the Anti-Riot Act was considered but not brought, Smith said, pointing to how that statute has been winnowed down by courts.
Trump was ultimately charged with four counts, including conspiracy to defraud the United States and obstruction of an official proceeding.
Trump repeatedly used ‘knowingly false claims’ of election fraud, Smith says
The report details how the special counsel and his team considered possible defenses that Trump might raise in court over his conduct around January 6, before they presented the indictment to a grand jury.
Those arguments included that Trump might claim “he acted in good faith when he sought to stop the transfer of presidential power because he genuinely believed that outcome-determinative fraud had undermined the election’s integrity and caused him to lose.”
Instead, the special counsel wrote, Trump knowingly worked to deceive others – an effort that “was pervasive throughout the charged conspiracies.”
“This was not a case in which Mr. Trump merely misstated a fact or two in a handful of isolated instances,” Smith wrote. “On a repeated basis, he and co-conspirators used specific and knowingly false claims of election fraud in his calls and meetings with state officials, in an effort to induce them to overturn the results of the election in their states.”
Smith also wrote that any argument Trump was merely following the advice of his attorneys wouldn’t hold up because the attorneys were involved in the alleged criminal conduct and Trump was not relying on them for advice but rather as people who could provide legal cover for his efforts.
Addressing the potential argument that Trump was exercising his rights to free speech, Smith wrote that because Trump used “knowingly false statements regarding specific facts to commit the crimes charged…they were not protected by the First Amendment.”
Following his indictment in the case, Trump’s targeting of witnesses through posts on social media presented “a significant challenge,” Smith wrote.
Trump was ultimately placed under a gag order after extensive court filings from Smith detailing his posts and comments on individuals involved in the case, including the judge overseeing the case.
“Mr. Trump’s resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies,” Smith wrote.
Smith called the effort of using social media to “publicly attack and seek to influence” people, including state and federal officials, judges and election workers, “a fundamental component” of his conduct “underlying the charges in the Election Case.”
“After Mr. Trump publicly assailed these individuals, threats and harassment from his followers inevitably followed,” Smith wrote, adding that “the same pattern transpired after Mr. Trump’s indictment.”
Smith defends unprecedented prosecution
The special counsel said his office would not have prosecuted Trump if he was merely exercising his free speech rights by engaging in “exaggeration or rough-and-tumble politics.”
The prosecutor also described Trump’s alleged conduct as going beyond challenging the election results in court.
“The conduct of Mr. Trump and co-conspirators, however, went well beyond speaking their minds or contesting the election results though our legal system,” Smith said in his report. “Instead, Mr. Trump targeted a key federal government function – the process by which the United States collects, counts, and certifies the results of the presidential election – and sought to obstruct or defeat it through fraud and deceit.”
Over the course of more than 20 pages, Smith laid out why he believed the unprecedented prosecution was justified, while arguing there was no alternative to a federal criminal prosecution for holding Trump accountable.
Not only was there “considerable federal interest in protecting the integrity of the United States’ electoral process” that “weighed in favor of proceeding,” Smith said in explaining his decision to bring charges, there was “federal interest defending from future harm the United States’ exceptional tradition of peaceful transitions of presidential power.”
He pointed to other interests that he said justified the prosecution, including protecting election officials from violence, counting every citizen’s vote and the “evenhanded administration of law.”
“To date, more than 1,500 people have been criminally charged for their roles in the January 6 attack on the United States Capitol,” Smith said, speaking to the need for an evenhanded administration of the law. “With that in mind, Mr. Trump’s relative culpability weighed heavily in favor of charging him, as the individual most responsible for what occurred at the Capitol on January 6.”
At the time of his indictment, Smith noted, the Georgia election subversion case against Trump had not been brought, and once it had, it did not “fully address” Trump’s election-related conduct. Moreover, even if the impeachment proceeding against Trump had resulted in a conviction by the Senate, that would not have been sufficient to address the federal interest, Smith said.
Smith continued investigating unindicted co-conspirators after charging Trump
As part of the 2020 election subversion probe, federal investigators interviewed more than 250 witnesses and brought more than 55 people to testify before a grand jury, according to the report. That includes interviews conducted during Smith’s tenure and before the probe became a special counsel investigation in late 2023.
Investigators also examined “voluminous records,” including emails, text messages, encrypted messages and other documents, which they obtained in some cases through search warrants and subpoenas. They reviewed more than one terabyte of data from public sources, including social media platforms.
After charging Trump, the special counsel’s office had continued to investigate the unindicted co-conspirators, Smith said in his report.
The office found evidence that one subject of the investigation, who was not named, may have committed unrelated crimes, and that investigation was referred to a US attorney’s office, according to the report.
In the federal election probe, the special counsel ultimately did not bring additional indictments, even as the prosecutors had made a “preliminary determination” that charges against “certain” co-conspirators could be justified.
“This Report should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person,” the report said.
Before dropping the case against Trump, the office had begun a discussion over whether potential charges against additional co-conspirators would be brought in Trump’s case or in a separate case.
“Because the Office reached no final conclusions and did not seek indictments against anyone other than Mr. Trump – the head of the criminal conspiracies and their intended beneficiary – this Report does not elaborate further on the investigation and preliminary assessment of uncharged individuals,” Smith said.
Smith says he tried to avoid influencing 2024 election
The special counsel team, Smith said, went out of its way not to interfere with the 2024 election by abiding by longstanding Justice Department policies for how to handle investigations during an election year.
The note marks an implicit rebuttal to Trump’s oft-repeated claim that the probe itself, the indictment and the potential trial were all part of an “election interference” effort by liberal prosecutors who were trying to defeat his campaign.
“Throughout its work, the Office was focused entirely on its mandate to uphold the law, and nothing more,” the report said. “The career prosecutors in the Office conducted its investigation and prosecution in a manner that complied fully with the Department’s policies regarding election year sensitivities.”
The report said Smith’s team consulted regularly with the Public Integrity Section within the Justice Department, which oversees cases involving public officials, including on details like when to propose trial dates that wouldn’t interfere with the election.
“Collectively, prosecutors in the Office had many years of experience providing training, advice, and guidance to prosecutors and law enforcement agents throughout the Department on how to comply with the Department’s election-related policies,” the report said.
Trump’s lawyers pushed ‘false’ and ‘unfounded’ claims to attack probe, Smith says
An appendix of the report contains a series of previously undisclosed, combative letters sent by Smith’s team and Trump’s lawyers as they wrangled in recent days over the public release of the report.
Trump’s lawyers sent a letter to Garland on January 6, demanding that Smith “terminate all efforts towards the preparation and release of” his report.
They claimed that Smith was trying to “perpetuate false and discredited accusations” against Trump by releasing the report, and they called him an “out-of-control private citizen unconstitutionally posing as a prosecutor,” citing US District Judge Aileen Cannon’s ruling that Smith’s appointment as special counsel was unlawful.
Smith penned his own letter to Garland on January 7, rebutting the Trump letter. Smith’s response accuses Trump’s lawyers, including his nominee for deputy attorney general Todd Blanche, of making a “variety of false, misleading, or otherwise unfounded claims.”
The special counsel also pointed out that Trump’s letter “fails to identify any specific factual objections to the draft” report that they reviewed in the past several weeks, ahead of its public release.
“Mr. Trump recycles his baseless allegation that the Office’s work constituted a partisan attack, a claim flatly rejected by the only court to have ruled on it,” Smith wrote in the letter to Garland, referring to an August 2024 ruling from federal Judge Tanya Chutkan in Washington, DC, in the election subversion case.
A hearing on volume two of Smith’s report is set for later this week in Florida.
Garland does not intend to release that portion of the report publicly, but he had planned to allow a very small group of lawmakers to view it behind closed doors. Cannon, however, extended an order that prevents him from sharing that volume to anyone outside of the department.
This story has been updated with additional details.
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