One For The Books: Jack Smith’s Report, Volume 1

Smith's report provides some additional details, but its main point is its historical value.

Montage made with image from REUTERS/Leah Millis

There will be no shortage of detailed discussions diving into the various angles of this historic document over the next couple of days. Here, I want chiefly to sketch out a summary of some of the most important takeaways and my main personal observations.

Remember that in October, Smith presented Judge Chutkan with a long, detailed, chapter-and-verse account of the indictment to argue that the evidence in it did not run afoul of the Supreme Court’s immunity decision. He didn’t hold back in that document, which laid out most of the evidence he had gathered against Trump throughout his investigation. As a result, there isn’t much in the way of new revelations in this report, and certainly no new revelations as they pertain to Trump himself.

That being said, there are a few new, interesting points.

First, the most important piece of new information—which I was primed to look for—is Smith’s explanation of why he didn’t bring certain charges. The regulations for a special counsel require him to explain both his positive and negative prosecution decisions to the Attorney General. Most importantly here, the charge of 18 USC §2383, the law against insurrection, has always hovered around this case and been a staple of journalistic accounts of Trump’s conduct. Had Trump been convicted under this law, it would have served the same function as Section 3 of the 14th Amendment, barring him from returning to the office of President. It’s very straightforward to describe Trump’s actions on or around January 6 as insurrection, or aiding or abetting insurrection. But, of course, Smith did not bring that charge. In the report, he explains why not.

Smith begins by noting there is very little §2383 precedent. Courts have described the events of January 6 as an insurrection, but in Smith’s view, the litigation risks of depending on proof of that formal legal term were too great. Moreover, the legal term "insurrection" arguably requires the actual overthrow of at least part of the government, which, of course, did not happen. Finally, there is essentially no case law for attempted insurrection or aiding or abetting insurrection under §2383. All these reasons made his decision understandable, even though it disappointed people at the time.

I found this to be a persuasive account of why he hadn’t brought that charge—a rationale we hadn’t heard before.

Second, there is some evidence laid out in the report that Smith has only just obtained after prolonged litigation involving Scott Perry’s cell phone, including texts between Perry and Jeff Clark at the Department of Justice.

Third, most of the remaining new information relates not to Trump himself but to the potential culpability of the co-conspirators. There are a number of unnamed co-conspirators set out in the January 6 indictment, and the Trump dismissal and Supreme Court’s immunity determination do not mean they are automatically out of the woods. However, you have to expect that Trump and Pam Bondi, if she is confirmed, will quash those cases going forward as well.

Fourth, more than presenting new evidence, the report serves as a comprehensive, first-time narrative about Smith’s investigation itself. He provides fine details about the DOJ’s various moves, including a significant amount of litigation, mostly pertaining to the scope of privilege, that had been sealed until now. Litigation over privilege is conducted under seal to avoid violating the privilege if it exists. As the report reveals, Smith’s litigation record in the privilege area was very strong. That’s in part because the privilege claims made by Trump and his team, like much of their lawyering, were tenuous at best.

Fifth, the report includes correspondence between Trump’s lawyers and Jack Smith over the fate of the report itself. Trump’s lawyers wrote a long screed demanding that Garland not release the report. The final correspondence from Team Trump deserves some focus because it embodies everything Trump will say going forward about the prosecutions against him. In fact, following the report’s publication, Trump released a deranged diatribe filled with tired but colorful denunciations of Smith as “deranged” and a “lame brain.” He charged that Smith was controlled by Biden, who was “crooked.” Somehow, Trump also layered in references to the January 6 Select Committee and, for good measure, Nancy Pelosi. Then he comes to his ultimate defense on the merits, the one that it appears he will propound in full force going forward: that he “won [the election] in a landslide. THE VOTERS HAVE SPOKEN!!!”

I think it’s going to be the continuing work of years to refute this claim, which is his only defense for his accused crimes. It is, of course, a complete non sequitur: Trump’s alleged election victory has no remote connection to his criminal culpability.

So it’s gratifying to see Smith explicitly address Trump’s exoneration claims in his final exchange with Trump’s lawyer Emil Bove, which concludes the report. Smith writes, “As the Office explained in its dismissal motions and in the Report, the 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.”

We should engrave that point on the entrance to the Special Counsel’s office before Trump & co. come in and demolish it.

Smith’s conclusion leads to the main point I want to make in this initial reaction. While there’s not much new here, the report is invaluable. It pulls together all the evidence in one place and reminds us how incendiary the old material is—such as the detail that when Trump was told Pence was in danger from the rioters, his curt response was, “So what?” In short, it paints a consummate damning portrait of Trump.

And with hope of any prosecution dead in the water, I believe this report could not be more important. This report serves as the formal statement from the U.S. government—akin perhaps to the September 11 Commission or Warren Commission reports—regarding the most serious attempt by any President to disrupt and defeat the peaceful transfer of power, the essential feature of a democracy. In essence, it is a clear, lucid, and calm statement of facts to counter Trump’s frenetic, feverish, and false accounts that will fill the airwaves as long as he remains in public life.

Talk to you later.