The Republicans' conclusions from Smith's testimony were, at best, relevant to bolstering their gun claims. Chief among them was the Jan. 6 House Select Committee, which conducted a separate public inquiry. Cassidy Hutchinson, former White House assistant chief of staff Mark Meadowswas the star witness who testified in the summer of 2022 that Trump threw himself behind the wheel of the presidential limousine and demanded to be driven to the Capitol. But Smith described Hutchinson as a “second- or even third-hand witness” and said her story had been contradicted by someone present. “The ENTIRE party committee file on the January 6th case has just been destroyed… by Jack Smith,” Republican members of the House Judiciary Committee wrote on X. “Star Witness is completely unreliable!” That may be a mistake, but it's the Democrats on the committee, not Smith, who comes across as a cautious prosecutor mindful of courtroom restrictions on hearsay.
The conventional wisdom about the criminal cases filed against Trump since his first term (four in total) has become that they were politically damaging to Democrats and legally unwise. This seems half true. Of course, the flow of cases against the former and future president has contributed to a growing sense of bias. But the indictments brought by Smith's office were the strongest of all, and Smith's testimony illustrated their importance. Others may question the wisdom of prosecuting Trump. Not Smith. “If I were asked today whether to prosecute a former president on the same facts,” he said, “I would do so regardless of whether that president was a Republican or a Democrat.”
Meanwhile, the Trump administration's claims that Biden has weaponized the Justice Department are becoming more surreal by the day. The Republican lawyer began his questioning of Smith by walking him through elements of Judge Robert Jackson's famous speech as attorney general in 1940 about the enormous power of the federal prosecutor to “pick the people he thinks he has to prosecute, rather than pick the cases to try.” The lawyer asked, “Are you okay with that?” and you could see where that might lead—an indignant message of vindictive prosecution.
But it was Trump who ordered the failed charges against the New York attorney general. Letitia James (three attempts, no less) and former FBI Director James Comeyand who fired prosecutors who refused to follow his instructions. Susie Wiles, Trump's chief of staff, admitted: “I don't think he wakes up thinking about retaliation. But when the opportunity arises, he will do it.” At the end of December, the Prosecutor General Pam Bondi commented on the active grand jury investigation into government weapons under the Biden and Obama administrations, saying the country had a “decade-long stain inflicted by high-ranking officials” and that one of the subjects of the investigation, a former CIA director John Brennanfell into the category of “bad actors”. This is hardly the Jacksonian vision of prosecutors with a “sensitivity to fair play and sportsmanship.”
Perhaps the most galling aspect of Smith's testimony was that he was effectively prohibited from commenting on the more serious of his charges, the secret documents charge. Smith ended his business after Trump's re-election; Smith later submitted reports describing them, as required by Justice Department rules. But in January 2025, the Trump-appointed judge overseeing the secret documents case Eileen Cannonblocked the release of Smith's report on the grounds that charges were still pending against two defendants, Trump aide Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira. The Trump administration then decided to drop the cases against them. But Cannon was slow to rule on whether to release the report, leading an appeals court to rebuke her in November for “unreasonable delay.”
An hour before Smith testified, his lawyer, Peter Koski, said during his testimony, the Justice Department informed Smith via email that Cannon's order meant he was prohibited from discussing any information contained in the report. When asked why Trump refused to return the documents despite repeated requests, and why he took them in the first place, Smith demurred. “Given the current state of the injunction, I don’t think I can answer that question,” he said. Days after the testimony, Cannon finally ruled that her order sealing the document would expire in February, at which point she could agree to release the report. However, even if Cannon allows it, the final decision will rest with Bondi. The special counsel's reports are regularly released, but don't count on Cannon or Bondi to follow suit. The final presentation of the case with documents could easily remain hidden from the public.
Smith's testimony was, in all likelihood, as close as one could get to a closing argument. It likely marks an unsatisfactory end to an unsatisfactory episode that highlighted the limitations of the criminal justice system in dealing with a lawless president. Now that Trump has called Smith a “criminal” who should be “investigated and jailed,” one question arises: What danger might Smith himself face? “I am confident with my eyes wide open that this president will seek retribution against me if he can,” Smith said at one point in his testimony. However, he said of his testimony before the committee: “I came here. I was asked to come here.” ♦
