By Dan Berman, Marshall Cohen, Katelyn Polantz and Tierney Sneed, CNN
(CNN) — The evidence was there to convict Donald Trump.
That’s the simple and powerful conclusion from former special counsel Jack Smith in his final report on Trump’s effort to overturn the 2020 presidential election culminating in the January 6, 2021, attack on the US Capitol.
Smith’s 137-page report, released overnight less than one week before Trump is sworn in for a second term as president, is a full-throated justification of his investigation and defense against his myriad critics.
And while he faced substantial political and legal headwinds — especially from the Supreme Court — Smith said his ultimate defeat was at the ballot box when Trump was reelected. With Trump about to be shielded from prosecution as the sitting president, per Justice Department policy, Smith wrote, it was all over.
A second volume, summing up the other half of Smith’s work, on what’s been assessed to be a strong but now-closed case against Trump over the retention of classified records after his presidency and obstruction of justice, is still not public.
As with all of the legal battles Trump won over the past couple of years, it’s part of the ultimate “what if?” question of the 2024 election.
Here’s what to know from Smith’s report:
Trump’s election win was the ballgame
This is the second time a special counsel investigating Trump has pointed to the fact that Justice Department policy means the former and future president won’t face a jury.
“The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not tum on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind,” Smith wrote.
“Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
Attorney General Merrick Garland has faced criticism from the left for not appointing a special counsel to investigate Trump until November 2022 — and Smith didn’t begin his work until early the next year. And it wasn’t an open-and-shut legal case. However, the special counsel indicated the 2024 election meant he was out of time and options.
Smith, however, didn’t guarantee a conviction — he just said there’s enough evidence.
“It’s the same conclusion any prosecutor must reach before bringing any indictment, that there’s enough there so a jury will convict,” said CNN senior legal analyst Elie Honig. “He’s not making some boastful prediction about what a hypothetical jury would’ve done.”
Dropping charges doesn’t exonerate Trump, Smith insists
Trump, who from January 6, 2021, has insisted he did nothing wrong and now plans to pardon many of those arrested, charged and convicted of rioting at the Capitol that day, has repeatedly said he was exonerated since the charges were dropped. Trump’s lawyers even included his “fully exonerated” line in a letter to the attorney general, trying to block the release of the report.
But Smith said that’s absolutely not the case.
“Mr. Trump’s letter claims that dismissal of his criminal cases signifies Mr. Trump’s ‘complete exoneration,’” Smith wrote. “That is false.”
Trump and the public have seen this language before.
Former special counsel Robert Muller, in his report on alleged collusion between the Trump campaign and Russia in the 2016 election, said there was more than enough evidence to charge Trump with obstruction of justice but didn’t.
“While this report does not conclude that the president committed a crime, it also does not exonerate him,” Mueller wrote in 2019, during Trump’s first term.
“If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state,” Mueller stated.
And while Trump pleaded not guilty to the federal charges and consistently called the investigation a “witch hunt,” his lawyers didn’t have any pushback to the facts of Smith’s report, the special counsel said.
A letter from Trump’s attorneys to Garland, Smith wrote, “fails to identify any specific factual objections to the draft” report they reviewed ahead of its public release.
The Supreme Court was a major roadblock
While Smith claims he could have obtained a conviction, he acknowledges the obvious: The Supreme Court was a deciding factor.
“Because of the unprecedented facts and the variety of legal issues that would be litigated in this case, the Office was aware that the case would involve litigation risks, as would any case of this scope and complexity,” Smith wrote.
“However, after an exhaustive and detailed review of the law, the Office concluded that the charges were well supported and would survive any legal challenges absent a change in the law as it existed at the time of indictment,” he added.
But the law changed. Slowly. And in Trump’s favor.
Smith had attempted to speed things up, asking the Supreme Court in December 2023 to jump in and consider the presidential immunity question.
The court, however, wasn’t in a hurry. It declined the request, waited for an appeals court ruling (which Trump lost) and didn’t hear oral arguments in the case until April. When the court’s conservative majority said in July that presidents enjoyed wide immunity for their official actions in the White House, it wasn’t until August that the special counsel was able to try again with a superseding indictment that limited the evidence Smith could use.
Unsaid by Smith: Three of the justices in the 6-3 majority were appointed by Trump during the same term for which he now enjoyed immunity.
Trump was also able to leverage the immunity ruling to delay being sentenced before the presidential election after being convicted in New York on fraud charges relating to hush money payments to adult-film star Stormy Daniels.
Decision to charge Trump was fully justified
Smith said his office would not have charged Trump if he was merely exercising his free speech rights by engaging in “exaggeration or rough-and-tumble politics.”
Trump and the unindicted co-conspirators in the case “went well beyond speaking their minds or contesting the election results though our legal system,” Smith said, regarding the efforts to overturn Joe Biden’s election win.
Over the course of more than 20 pages, Smith laid out why he believed the unprecedented prosecution was justified and that there was no alternative, citing the need of “protecting the integrity of the United States’ electoral process” and the “federal interest defending from future harm the United States exceptional tradition of peaceful transitions of presidential power.”
Impeachment — even if Trump had been convicted by the Senate — is a political process, not a legal one, Smith wrote. Trump was impeached for his role in inciting the riot on January 6, 2021, but was acquitted by the Senate.
“Thus, even if Mr. Trump had been convicted by the Senate, political accountability, in the form of impeachment, would not have been an adequate alternative for criminal accountability, especially considering the scope of Mr. Trump’s offenses and the substantial federal interests they targeted,” the report stated.
The special counsel noted that more than 1,500 people have been charged for their actions at the US Capitol on January 6, so Trump shouldn’t have gotten off the hook: “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.”
Nevertheless, there are others who also will avoid federal charges thanks to Trump’s win: the unindicted co-conspirators. At least one subject of the investigation, who was not named, may have committed unrelated crimes, and that person was referred to a US attorney’s office, according to the report.
Smith has some thoughts for election-year probes
Smith’s report has an entire section contemplating how the Justice Department should approach investigations in election years, something that’s been a constant source of controversy, especially over the past decade.
He stated that given the timing of the investigation and Trump’s concurrent reelection bid, the former president’s “actions would be criticized by one constituency or another, regardless of which path the investigations took.”
The special counsel said he leaned on DOJ policy and his own experience in the department’s Criminal Division’s Public Integrity Section and moved “swiftly.” DOJ policy is to not bring charges in the months before an election, he wrote, but it does not apply to cases already in court, as his were.
“Whether it is during an election year or any other time, the duty of prosecutors after indictment is to litigate their cases fully and zealously,” the report states.
Smith is essentially giving future prosecutors a roadmap. There has never been as fulsome of an articulation of this, especially in writing, so what Smith and his team wrote here will probably become relatively important in future elections.
Justifies special counsel investigations
Smith had choice words for Trump’s attorneys, saying they peddled a “variety of false, misleading, or otherwise unfounded claims” to attack the integrity of his indictments and investigation.
This searing rebuke is all the more notable, considering that one of the people Smith criticized was Trump attorney Todd Blanche, the president-elect’s pick to serve as deputy attorney general. It’s not out of the question that Blanche, in that role, could help supervise special counsel investigations in the future.
Smith’s condemnations came in a January 7 letter to Garland and made public in the report. Smith sent the letter last week in response to a vitriolic letter from Trump’s team arguing the report should never be released because he is an “out-of-control private citizen unconstitutionally posing as a prosecutor.”
It’s all the more jarring to see Smith condemn the incoming president’s lawyers on the same day that a separate special counsel condemned the outgoing president, too.
Special counsel David Weiss, who investigated and successfully prosecuted Hunter Biden, said in his own final report on Monday that President Joe Biden made “false” and “wrong” accusations about the probe to justify pardoning his son. (Biden had said the investigation was unfair and tainted by politics.)
But here’s the reality: For the first time since 2016, there are no active special counsels at the Justice Department. The eight-year saga of seemingly endless major investigations is over — for now.
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