Special Counsel Jack Smith’s Final Report in the 2020 Election Interference Case

Just after midnight on Tuesday, Jan. 14, Special Counsel Jack Smith’s office released its report on President-elect Donald Trump’s efforts to overturn the 2020 presidential election. The report concludes that the evidence Smith obtained was sufficient to criminally convict Trump, but that after the 2024 election, the case could not move forward in light of Justice Department policy against prosecuting a sitting president.  

While the report reveals relatively little new factual information around the events of the January 6 attack on the U.S. Capitol, it does explain Smith’s rationale for his legal positions and key decisions. The report could also have implications for other criminal proceedings, including state-level cases against fake electors. 

What are the report’s key take-aways and how might it add to the historical record? 

Joining the show to discuss the report are Tom Joscelyn and Marty Lederman. 

Tom is a Senior Fellow at Just Security. He was a senior professional staff member on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Marty is an Executive Editor at Just Security and a Professor at Georgetown University Law Center. He served in senior roles at the Justice Department, including in the Office of Legal Counsel.  

Show Notes:  

• Paras Shah (LinkedIn – X)
• Tom Joscelyn (Bluesky – X) 
• Marty Lederman (Bluesky – X)
• Tom’s Just Security article with Ryan Goodman (Bluesky – LinkedIn) “3 Highlights in Special Counsel Jack Smith’s Final Report on 2020 Election Subversion Case” 
• Just Security’s Trump Trials Clearinghouse
• Just Security’s January 6th Attack on the U.S. Capitol coverage
• Music: “Broken” by David Bullard from Uppbeat: https://uppbeat.io/t/david-bullard/broken (License code: OSC7K3LCPSGXISVI)

Transcript

Paras Shah: Just after midnight on Tuesday, January 14, Special Counsel Jack Smith’s office released its report on President-elect Donald Trump’s efforts to overturn the 2020 presidential election. The report concludes that the evidence Smith obtained was sufficient to criminally convict Trump, but that, after the 2024 election, the case could not move forward in light of Justice Department policy against prosecuting a sitting president. 

While the report reveals relatively little new factual information around the events of the January 6 attack on the U.S. Capitol, it does explain Smith’s rationale for his legal positions and key decisions. The report could also have implications for other criminal proceedings, including state-level cases against fake electors. 

What are the report’s key take-aways and how might it add to the historical record? 

This is the Just Security Podcast. I’m your host, Paras Shah.  

Joining the show to discuss the report are Tom Joscelyn and Marty Lederman.  

Tom is a Senior Fellow at Just Security. He was a senior professional staff member on the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Marty is an Executive Editor at Just Security and a Professor at Georgetown University Law Center. He served in senior roles at the Justice Department, including in the Office of Legal Counsel. 

Paras: Tom, Marty, thanks to both of you for joining the show to share your insights about this important report, which culminates Jack Smith's work over the last few years. I wanted to start by having both of you share your high-level impressions of the report. What has stood out to you in reading it? And Marty, let's start with you. 

Marty Lederman: All right. Great. Thanks, Paras, and Tom, it's great to join you here. So, the facts that are recounted in great detail in the report are, for the most part, already known. And I actually think that's part of what's most important about the report. It is very much of a piece with — I believe Tom can say otherwise — but I think it's entirely consistent with the House committee report, with the briefs that the Special Counsel filed in the DC case, describing the evidence, and like, it's putting it all in one place and doing so extraordinarily effectively. 

So, the top-level things. There are a couple of interesting details that I hope we can talk about in terms of the work of the Special Counsel's Office and why it did what it did. But in terms of the substance of the report, two things really stand out to me, and they lead to perhaps what I think of as the most important ramifications of the report. So, the two things are, first, that for all of the objections that the president-elect and his counsel have raised about the report, for all of the invective that he has cast upon the Special Counsel and the like, it's striking to me that unless I've overlooked something, they haven't tried to dispute virtually any of the evidence or the facts or the characterizations of the facts recounted in the report or in the briefs filed in DC. That is to say, this is largely a report that is factually union uncontested. The president did these things —they're not even making claims, far as I know, that he truly believed that there was fraud. I know he keeps saying there was fraud in the 2020 election, but they don't really take issue with any of the evidence, and it's overwhelming evidence, that he did not truly believe that, or if he did, he had no reasonable basis for doing so given all of the evidence presented to him, and that constant and repeated explanations from everyone around him that these claims were unfounded. 

And that the president engaged in extraordinary efforts to, as it, you know, as the report describes it, he knew he had lost the election and that lawful means of challenging the election results had failed, and therefore he resorted to a series of criminal efforts to retain power, including attempts to induce state officials to ignore true vote counts and to manufacture false slates of electors just in the seven states that he lost, just sufficient to change it, to pressure DOJ officials — the acting Attorney-General, the acting Deputy Attorney-General, and others — and his own vice president to act in contravention of their oaths and instead advance his personal interests by falsifying the facts of the election, basically, and acting in a way that would cause state officials to do so, or that would hold up the vote on January 6th, and on January 6th directing an angry mob to the Capitol to obstruct the congressional certification of the election and leverage rioters violence to further delay it. The Counsel does not find that President Trump intended to incite the actual violence at the Capitol, but it does find, beyond any reasonable doubt, that he induced them to try to make efforts to stop the vote count from happening, notwithstanding his knowledge that there was no basis for doing so. So, the first big thing that occurs to me is that, remarkably, there's really no dispute about those facts, as far as I know. 

The second is, I don't see anyone, really — Tom, you can tell me if there are exceptions to this — who has made any kind of argument that anyone who did the things that the president-elect did is fit to hold federal office, let alone to be the president of the United States. It's not as though you have Republican officials who say, oh yes, he did all these things and tried to subvert our democracy and put himself in power even though he knew he had lost the election. But that's okay, he should nevertheless get off, not just get off scot-free, I'm less concerned about him being convicted and more about him continuing to wield power. 

And I think that the electorate, for the most part, knows all of this, right? Yes, there's part of his base that thinks the election was stolen, and that he may have believed that it was stolen, but I think a very significant percentage of those who voted for him did so notwithstanding that he did these things. So, those are the two remarkable things to me are the things that are not there, which is any dispute about the facts, or any argument that someone who did these things ought to be the president of the United States, or ought to be fit to be president of the United States. 

And that leads to the, I think, historically, the most important thing about this, which is that the institutions of our government and the electorate seem to be okay with that happening nevertheless, notwithstanding the fact that there's pretty much a consensus that what the Special Counsel describes actually happened, and that the president-elect did this quite remarkable, historically completely unprecedented thing that I think all of us would have said before the fact, it's unthinkable for someone to do that and still have a place in public life, let alone be the president of the United States. And the fact that there's been virtually, you know, the report dropped, and there's been one percent — the attention given to it has been about one percent of what was given to the Mueller report, for instance. I think it's sort of old hat. We've become reconciled to this. And to me, that is the most important facet of this, really, is that this is now sort of second nature, and we're just acting as though it has no effect on the republic. So, I'll leave it at that and see what Tom and you have to say about that.

Tom Joscelyn: Yeah, no. Thanks Paras, and thanks Marty for doing this in first conversation. No, I agree, largely, especially about the facts of the matter being uncontested, and a big part of that is because so much of this spoke-and-wheel scheme that Trump oversaw in his attempt to overturn the 2020 election, so much of it took place right in front of our eyes. I mean, so much of it took place right in front of, you know, all Americans to see with your own eyes and hear with your own ears. You know, I've always been struck by the invective that he pointed at his own vice president and how he stirred up a mob against his own vice president. These were all things he did on Twitter and in public speeches, first in Georgia, and then on January 6. You know, the text of his January 6 speech is still available online. Anybody wants to inspect it. You can watch the whole thing. That was the thing that I found when I was working in on other issues at the time, when I saw that speech, I thought, uh-oh, you know, this is really crossing a lot of red lines here, and we're in trouble.  

And I do agree as well. I fear that a lot of this is baked in now, that a lot of this has become basically de facto acceptable to large portions of the political body. I do think that there are a lot of conspiracy theories, however, that do infect, especially the right-wing discourse on these issues. There are a lot of conspiracy theories ranging from, you know, Trump really wanted to authorize the National Guard to be there that day to, you know, isolating only one part of his speech, saying he told everybody they go down there peacefully and patriotically, and ignoring the rest of the speech, to conspiracy theories about the January 6th committee. And all this stuff basically adds up. And I don't know how much of a factor that is overall in tilting opinion about January 6th and the political conspiracy that led up to it. But, I do think there's a lot of sort of nonsense in the system and in what people believe. I've certainly been confronted by people who believe crazy things about January 6th and the conspiracy led to it. So, I think that's all very important. 

Now, I thought, you know, a couple other things on it that I thought were important. You know, one, in terms of how they discuss the actual violence. There's always been an important distinction here. One, as Marty said, the intent of sending the mob down to the Capitol was to obstruct the joint session of Congress, to obstruct the congressional certification process. Whether Donald Trump had any foreknowledge or intent when it came to actual specific violence on January 6th, that was the reason he sent the mob down there. He wanted the mob to convince his vice president and members of Congress to stop the certification of his defeat and certification of Joe Biden's victory. And that's an important point in and of itself. 

The language on the actual violence itself was a little bit muddled to my reading, especially when they talk about Trump, whether or not he knew the full scope of the violence or had any intent in that regard. It's sort of an odd phrase to say full scope of the violence. It means, you know, what does that mean? I mean, it could be that there are other sort of, you know, things short of that that are still violent. But he certainly knew, as the committee documented, and as you could see, even in the Special Counsel’s memos and reporting, he knew the crowd was angry. He knew the crowd was going down into the Capitol angry. And he, you know, there was all sorts of indications or reasons to think that there was violence approaching. Violence was foreseeable, as a Special Counsel found. 

You know, one of the things that we learned from the Secret Service and from other sources is that, you know, all these weapons were confiscated, magnetometers outside of his speech at the Ellipse, and there were a lot of weapons that weren't confiscated because people were turned away from the magnetometers. So, you know, anybody who was in that situation could have foreseen that violence was approaching. And all of his rhetoric, really, up through his 2:24 tweet, which was again pouring more fuel on the fire against his own vice president, a lot of his rhetoric was certainly insightful, but you understand, for legal reasons, why they didn't charge him when inciting an insurrection. I just wanted to say that there is a lot of evidence that, you know, his intent in terms of what he wanted the crowd to do is a little more muddled than, I think, than some people in the public commentary have sort of let on. I mean, he clearly intended them to obstruct the joint session of Congress, and he should have known that the propensity of violence was there. 

Lastly, I'll say one thing about all this that I think is still — then I'll turn over to Marty again — I think is still important, is to my mind, I still find there are a lot of unanswered questions about the political connections of the people who actually led the violence on the Capitol, in particular, the Proud Boys, who are a very well connected group, had connections to known people who advised Donald Trump. And, you know, we don't really have any answers on that, but I still think that that's very much an open question, and I'll leave it there.

Paras: Given what both of you are saying about how a lot of this has been normalized, and so much of this really turns on norms and this unprecedented conduct, I'm wondering going forward, how do we get back to trying to reestablish those norms or pursue other means of accountability when these criminal cases really haven't panned out, when two impeachment efforts haven't panned out during the president-elect's first term? How do you go about restoring those norms or trying to provide a corrective?

Marty: Boy, Paras, If I knew the answer to that question. This is what keeps me up at night. I mean, I really fear that that all of our institutions, it's now happening with such rapidity, that the normalization and the capitulation to the acceptability of this — not so much among the electorate. I think that there's always been this strain in American politics, and a good portion of the country that's very willing to believe conspiracy theories, not only on the right, but on the left as well, and to think that everything is politicized. Now I will say that even though everyone, I think, huge numbers of people, and certainly all the politicians and actors within the beltway, know that Donald Trump did all of this, and that ordinarily that ought to be disqualifying of someone holding high office, there is a large perception that folks on the other side, Merrick Garland and Jack Smith and others are if not just as cutthroat and you know, partisan, you know, that they play hardball as well, and it’s unfair that they're singling out Donald Trump, and that sort of it’s a curse on both your houses. Everyone is corrupt, everyone is willing to break all the norms. 

I don't think, you know, cards on the table, I was in the Department of Justice during part of these proceedings, did not work very much on these matters, and certainly not at all on any of the factual investigations. But I know the Attorney-General, and I'm pretty familiar with the Special Counsel, with some of the folks in the Special Counsel's office, and I think the Special Counsel’s letter to the Attorney-General defending the integrity and the good faith of the people in his office and himself are correct, without any exception. I don't think this was politicized at all. I don't think it was political. In fact, I think I believe the Special Counsel, when he writes at length about how it was a matter of very deep conviction and norms and DOJ policies, not to engage in any efforts to affect the election whatsoever. Now, that raises questions — a couple of questions about how to explain a couple of things that were done, but that part of the narrative, I think, is wrong, but there's no way to undo it. 

In terms of the normalization, Paras, and how do we get to a point where our institutions won't put up with this anymore, I mean, I fear we — I don't know. I don't know. Historically, this is very common for nations that are heading toward autocracy. This is how it happens. That kind of behavior becomes normalized, becomes acceptable, becomes the sort of thing people yawn about because it has become so commonplace or so well-known. And you know, history is not very comforting in that regard. Now, history is also very complex and things could be very different going forward. I think the whole point of the Biden administration, or President Biden and Attorney-General Garland, their whole mantra was, let's bring back, you know, the institutional norms and integrity to government, and that was pretty much ignored, disregarded by the electorate, and more importantly, by all of these institutions, the Republican Party and now the mainstream press and certainly major economic players in the nation and the like. 

There doesn't seem to be any appreciation for those institutional norms that I care deeply about. And you got me. I'm the wrong person to ask about how to turn that ship around. And I'm not sure I've read anything that gives me great comfort about that. I hope I'm wrong, but I fear that the most important thing about the report is that everyone, every thoughtful and reasonable person, understands that it is telling a true story, and nevertheless, it has no effect on our polity.

Tom: You know, just to add to that, I mean, what Marty's saying right there, doesn't that highlight the disconnect, right? And what I agree with that nobody's challenging, including Trump and his legal team, the underlying facts. Nobody challenges that he did these things, or that his team did these things on his behalf. And yet, this persistent idea that somehow this is an illegitimate prosecution, or this effort was illegitimate and politically tainted against him, persists, and you could see it. We're sitting here today, and the Attorney-General nominee, Pam Bondi, is sitting up on the Hill. And if you watch the senators question her, the Republican senators in particular, and then you watch her answers, that perception is baked into everything they're saying, right? That idea is baked in. 

Put aside the Mar-a-Lago documents case for a moment, even though I think that was totally just as well, and just focus on the January 6 case, so, what people have called the January 6th case. Again, nobody can dispute that Trump did these things. The only question is whether or not they violate the specific statutes he was charged with violating. That's it. There's no real other dispute here, and so the lawyers can wrangle over that. But the facts of the matter are, everybody knows he tried to overturn an election. And so, whether or not, you know, he got legal accountability for that or not, this is where I get a little darker, even than what Marty was saying, putting even the whole legal proceeding aside, the point is, the American people know that. Putting aside the case, the special accounts case, putting aside the attempts at legal accountability, American people know that, and effectively, we're okay with it, and that's the problem, right? I mean, you didn't need, quite frankly, you didn't need the January 6th committee’s investigation report. You didn't need the Special Counsel’s investigation and charges to see that something that happened here was gravely wrong, really, really wrong, and abnormal in American history and violated all the norms of American democracy and the peaceful transfer of power. And yet, the result seems to be a collective shrugging of the shoulders. And so, I don't know how, as Marty said, I don't know how you can come back from that. 

I actually consume quite a bit of far-right media and right-wing media, as somebody who used to be a tangential figure on the American right. I do watch quite a bit of that stuff. And it, you know, it's frightening. I mean, it goes way beyond just disinformation now. You're talking about an entire ecosystem or worldview where this grievance and victimology is baked in, so much so that even after Donald Trump, and everybody knows he did this, even after he tries to overturn an election and sends an angry mob down to the Capitol to do that, you still have this grievance of victimology, turning him into a victim of the system. You know, he just tried to overthrow the system. He just tried to overthrow our democracy, and yet he somehow portrayed as a victim in all this, across this entire media ecosystem. I don't know how you come back from that. I mean, it's a great, grave issue. 

Marty: You know, I have a slightly different take, which is, I think that's always been there. I mean, I think that's always been a strain of them in the United States. 

Tom: I would argue not to this degree. I've been tracking conspiracy theories a long time, and I have not —

Marty: It might be. It have this may have been fueled — although there's been plenty of that sort of thing throughout our history, what really has changed is that we've really depended less on the electorate and more on the political institutions and nonpolitical institutions, on the press and on the parties and on the government, to be able to check this. One mistake people, you know, sort of call it the anti-Trump crowd made this whole time, I think, was to think that if only there were convictions, if only you took the facts that everyone basically knew and, you know, said, well, there's a jury that has decided that they meet the elements of a Title 18 offense, that that would change anything. I don't think, I don't think it does. I don't think this is one of those cases where there's a, you know, fundamental disagreement about what happened. And therefore, when there were 34 felony convictions in New York, there were a lot of people who thought, oh, that will make a huge difference. And it didn't make a difference at all. If anything, it strengthened Trump, which didn't surprise me, and I don't think if he had been convicted of these offenses, that it would have had much of an effect on the electorate, quite honestly. 

The checks have always been institutional. The real checks have always been institutional. Think back to ’74. Nixon's conduct was not nearly as egregious as Trump's, and Nixon came to power with far greater popular support than Trump. He had won 49 states, over 60 percent of the vote, you know, overwhelming support, and yet, nevertheless, the Republicans, enough Republicans within the Senate and the House, knew right away that even his much lesser delicts meant that he had to step down. And that was it. So, to my mind, the real important date was, you know, that in February of 2021, when we couldn't get 10 more senators to vote to disqualify Trump. I mean, once that happened — it looked for a while in late January, early February, like there might be the votes to convict Trump and disqualify him, and that that might have been to the advantage of the, you know, many Republicans thought that was to their party's advantage going forward. But by the time the vote came around in the Senate, of course, there was no support for that, very little support for that, only a handful of senators. And that was the time, that was the way to do this. It ought to have been done in the impeachment trial and the conviction. They got 57 votes. But 57 isn't 67, and that's where we are. I'm afraid I don't have many hopeful words to say in that regard, Paras, because this does strike me as a fundamentally institutional failure at a very profound level. 

Tom: Yeah, on that point, I'll just say I agree. I made that comparison over and over again between Watergate and January 6th and the fact that Republicans — ultimately, in a two-party system, if one of the parties doesn't agree with accountability for the leader of their own party, then you're in trouble, right? And that, I think, is a function of our system, the two-party system. In Watergate, enough Republicans broke with Nixon in order to hold him accountable, whereas it didn't happen with Trump. And really Mitch McConnell to blame for that. I mean, he's the one that could have, you know —

Marty: People say that, but could McConnell really have rounded up? 

Tom: Yeah, I think he could have. I mean, I definitely think — 

Marty: Really? Okay. I got the sense that there weren't any votes to be rounded up. 

Tom: No, I think if he went all in, he could have mustered the votes, I think, and certainly, you know, his own rhetoric and his own justifications for not doing that were so, you know, weak. I mean, it was basically, it was saying, you know, well, this was a criminal matter, and, you know, he thought that the criminal accountability was necessary, not an impeachment. And quite frankly, he, you know, Trump should have been convicted of impeachment by the Senate. 

But just to back up for a second on conspiracy theories, because I've had this debate quite often with people about, you know, conspiracy theories have always been there and always part of the body politic. I just don't think that they've ever been so central to a political figures paradigm and political program as they are with Donald Trump. And the example I always use is Alex Jones. You know, what modern political figure could you point to that has embraced somebody like Alex Jones as Donald Trump has, you know? And Donald Trump welcome Infowars and the Alex Jones crowd into his political coalition. And there's a direct line between the decision, in my mind, a direct line between that decision in December 2015 when he does that, welcoming them into his MAGA base, and how so much of the American right has been overrun by conspiracy theories this day. And I have a big, long analysis, eventually, I want to write of this, explaining this. 

But you know, this stuff is infected like wildfire. I mean, you have now in the House and the Senate, Republicans repeat conspiracy theories all the time. I mean, you just had the vice president-elect, Senator Lee, various other people endorse the conspiracy theory that the FBI instigated January 6th. You know, no wonder you're not going to have any accountability for January 6th when you have leading Republicans who should know better, and probably do know better, endorsing these crazy conspiracy theories that are trying to blame the FBI for it, you know. And this is this type of stuff that's really overrun a good amount of the right, I would say, you know. I don't think we can point to a comparable time in our history. I mean, I think I'm well-aware of the McCarthy era. I'm well-aware of, you know, predecessors and conspiracy theories throughout history. But to me, to my mind, I've never, I don't know of a time when they've been so central to a political movement and so central to a president-elect, president's power, and then a president election.

Marty: I agree with that, Tom. That's, I guess what I was saying was, I'm not sure there are dramatically more Americans who believe these things, but that it's one of our political parties has embraced it, hook, line and sinker.

Tom: And made it central to their political program. I mean, if you look at the Trump's nominee to be the FBI Director, Kash Patel, this is a guy who has insinuated or suggested that the FBI itself caused January 6th, you know, and there's plenty, and there's plenty of other press reporting on the conspiracy theories he’s alleged. The instrument that they want to use to overtake bureaucratic power and wield the power of the bureaucracy across the state and turn it into a Trump state, not a deep state, but a Trump state, right, are these conspiracy theories. This is the way they do it. The way they do it is they say that it's all illegitimate because of all these various conspiracies that they are fomenting, and that, to me, is weaponizing these conspiracy theories in a way, at least I'm not familiar with that in our history, and it's very prevalent, and you're going to see a lot of that over the next few weeks. And that's a big part of, I think a big part of the reason why there's no accountability for January 6th, is that Trump has a cult of personality and a hold on one of the political parties. He uses that very effectively. You could talk to former Republicans or ex-Republican members of Congress and Senate about how effectively he is wielding that, and basically he intimidated people out of accountability in a lot of ways. 

Paras: So, Tom in your piece on Just Security with Ryan Goodman, you both note that the report could have some effect on state level criminal prosecutions that are ongoing and will continue. State level prosecutions are not subject to the federal pardon power that Trump will wield, and that the evidence in the report shows that some of these electors were actually duped into participating in the scheme. So, what impact might that have on some of these other prosecutions that are state level? 

Tom Joscelyn: Well, you know, some of the state prosecutions of the fake electors, or the false electors, to be honest, I've always had some reservations or critiques of them, and the reason is exactly what was exposed, further exposed in the Special Counsel’s report, and you can see this in the January 6th committee’s report as well. We had evidence that some of the fake electors were duped by higher ups. And so, in places like Michigan, for example, the higher ups are not charged with duping anybody, and yet the dupes are charged. And I just find that to be, you know, problematic, obviously, for various reasons. And what you can see — there are a bunch of quotes in this footnote that the Special Counsel produces in the report where they ask the fake electors things like, if you knew that your false electoral certificate was going to be used to gum up the proceedings on January 6th and obstruct the joint session and to pressure Vice President Pence, would you have signed? And of course, these fake electors are like, no, I didn't know that that was what this was about. I thought it was contingent on election litigation, and that if the Trump team won election litigation that reversed the outcome in a state, then our electoral votes would count. It would matter. And we were told to meet and vote because we had to do so at a certain date and time in order for the count if, you know, this litigation had been won and this contingency had been fulfilled. The bottom line is, you can see in the memos and the evidence, and in fact, the Special Counsel got a memo, a key memo, from a lawyer named Kenneth Chesebro, that we the committee, January 6th committee did not have, where it showed the evolution of this fake elector plot from anything that could be passing a resemblance of a contingency based on litigation to an active effort to just sort of obstruct the joint session of Congress on January 6th. And so, the issue here is that there's plenty of evidence that at least some of the electors in each one of these states were duped and charging them as if they were full blown conspirators and in on the game the whole time just seems a little off to me. But, you know, they're not charging the people who duped them, and that's really the essence of the matter.

Paras: Yeah, thanks for that overview, and we're running short on time. But is there anything that we haven't touched on yet that either of you would like to add?

Marty: So, I mean, the one thing that I want to talk a little bit about is the emphasis in the report on Jack Smith's insistence, and I believe it entirely, but it is very much contrary to the views that Tom has described, that many people hold, that everything the the Special Counsel's office did, and I think this is true of the Attorney-General as well, was without regard to trying to affect the election. I know that, you know, if you came into this podcast thinking that that's not true, I'm probably not going to convince you otherwise. But I do think that it's true. I do think that these are folks who took very seriously the idea, not only the constitutional norm that that would be, you know, a breach of constitutional ethics, really, to try to use the criminal justice system to affect the election, but a breach of the Attorney-General's very strongly stated policy that criminal investigations and prosecutions, steps should not be taken with any eye toward affecting an election. 

In fact, what the report seems to suggest is that, remember what it was that triggered that the appointment of Jack Smith. It was that Trump announced he was going to run for president. That's why it had to be taken out of the ordinary DOJ processes and given to a special counsel. And at that point, Smith says that they were trying to actually expedite things a great deal so as to get it all done before the campaign season in the summer of 2024. Now, that may have been wishful thinking, really, as I think it is. It would have been hard to get it completed, but it could have been well on the way to not have it, you know, not have it be going on in the heart of the election season, and to get it done earlier, and that they were taking steps to make that happen.  

The one difficulty, and I think this affected the Supreme Court justices, quite frankly, some of the justices and others who were more skeptical of the Special Counsel, was in December of 2023 was their, you know, effort to skip over the DC Circuit and go straight to the Supreme Court with a petition for certiorari before judgment on the immunity question. I think most people perceive that move as an effort to make sure that that Trump was convicted in order to affect the election, right? To speed things up rather than let them go at the at their pace. The Supreme Court, as you may recall, rejected that petition without any noted dissents. There's not a great deal of explanation in the report for why they took that step. They make analogy to the fact that in the Nixon tapes case, both the government and Nixon went to the Supreme Court in a similar posture to try to, skipped over the DC Circuit. But the facts there are somewhat different. They say it was because of a need to get, you know for the American people, there was an urgency for the American people to have this addressed because of the enormity and the importance of what this case was about, not because Donald Trump was running for president again.  

I do think that there's probably something else going on that, I understand why Jack Smith, if it's true, might not have said it in the report, which is, I do think they feared that what we are now seeing, it was a possibility. It wasn't November 5 that they were thinking about. It was January 20, 2025, and they knew that if Donald Trump became president, this prosecution would come to an end. That was really — this is complete speculation — but I imagine that's part of what was driving their desire to move very quickly on the immunity matter. I think they also thought that they would prevail on the immunity matter, you know, very, very quickly before either the DC Circuit or the Supreme Court. That turned out to be wrong. So, in retrospect, this was not going to happen, right? In retrospect, they weren't going to get this done before the election, but they didn't know that at the time in December of 2023 and I think they sort of hoped to be able to do it. I think that's the one thing that I wish there would have been more about in the report. But I understand why there wasn't. 

 But other than that, I do think it's important to note that they took seriously this idea that the Justice Department and the FBI and the Special Counsel's office should not be weaponized to try to accomplish partisan political ends. You know, I'm not going to convince anyone that that's true, but I thought Smith's report and the accompanying letters did a very good job explaining that that was sincerely their goal and their objective and their north star. 

Tom: When I was talking about the perception of it being illegitimate, I wasn't making any representations of what DOJ was thinking, or Special Counsel’s thinking. I have no idea what the rationale, reasoning is behind how they do any of this stuff. I find it all, as a layman, I find it bewildering and, quite frankly, maddening, you know, because I think this was a case that could have been brought pretty quickly based on what happened, and should have been brought a lot sooner than August 2023 and I don't think —  

Marty: Sorry, I guess that's what I'm getting at, Tom, why should it have been brought sooner, right? Most people who were clamoring for it to be brought sooner wanted that in order to affect the election. And I think from the perspective of the Attorney-General and later the Special Counsel, no, that's a consideration that we should not — it should not take into account. 

Tom: But bringing it sooner wouldn't have necessarily been — the intent wasn’t to affect an election before he even declared he was running again. I think my view, as a layman, is this: what he did is obvious. It was right in front of our eyes. We saw what he did. The question, the only question is whether or not it violates certain statutes. I think as a layman, not a lawyer, I've read through them, I think it does violate those statutes. I think it's pretty easy, and it's not about necessarily about affecting an election, because he again, even declared he was running again when I thought the charges could have been brought. I think it could have been brought pretty early in 2021. I think it's pretty obvious what he was trying to do, you know? And I don't think it's really all that complicated. 

And that's why the Special Counsel’s report that was just released, for example, there are no surprises in it, because I don't think there really are that many surprises to be had, you know. So, to me, this is why I say when, when people say if, somebody wants to argue like we've, we've established here that nobody disputes the facts in it, true. If somebody wants to say, no, his behavior doesn't actually violate these statutes, right, okay, then that's a legal argument and can be had at, right? That could be a legitimate basis for trying to question stuff. I don't, you know, on 15:12, and some of the other things, you can see people try and make that argument. I think, as a layman, they do violate those statutes. And so, to me, this is all pretty obvious, but anyway.

Marty: I would just urge our listeners, our viewers, to read the report which does address that why it took the time that it took, which was predominantly to get, you know, this was going to be a charged case if it ever went to trial, and a hotly contested case, and particularly on whether Trump knew that there was no fraud in these seven states. And they needed to collect the evidence of his knowledge from many different sources. And there were a ton of executive privilege claims being made, for instance, and it took time to resolve those and to litigate those. I actually do think they went quite rapidly, all things considered. 

Tom: Well, I'll just say I don't think it should have taken to August 2023 for him to be charged. You know, I don't think that — you can do a full fulsome investigation in less than two and a half years, I would hope, you know? So, that's ultimately the issue, I think, for me.

Paras: All right, we'll leave it there and continue to cover these issues at Just Security. Tom, Marty, thanks to both of you for joining the show and sharing your expertise with us. 

Marty: Thanks, Paras, thanks,Tom. 

Tom: Thank you, Marty, thank you, Paras.

Paras: This episode was hosted and produced by me, Paras Shah, with help from Clara Apt. 

Special thanks to Tom Joscelyn and Marty Lederman. You can read all of Just Security’s coverage of the January 6th attack and the criminal cases against Donald Trump, including analysis from Tom and Marty, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.