The Justice Department delivered part of special counsel Jack Smith’s report to Congress early on Tuesday morning.
It explained his charging decisions related to the probe into now-President-elect Donald Trump’s alleged efforts to subvert the 2020 election leading up to and during the attack on the US Capitol on January 6, 2021.
The report was originally intended to include information about Smith’s prosecution of Trump for his alleged illegal retention of classified documents at Mar-a-Lago.
But, because the case is still active against two of Trump’s co-defendants, Attorney General Merrick Garland agreed to keep those details under wraps for now. That case is likely to unravel entirely once Trump takes office, so it is highly unlikely that the public will ever see that information.
Smith explicitly says he believes the department had enough evidence to obtain and sustain a conviction were Trump to stand trial.
The 137-page document was first obtained by The New York Times.
“The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President 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, which the Office stands fully behind,” the document reads.
“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.”
Trump was indicted in August 2023 on four felony charges connected to January 6: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The latter charge was for intimidating voters as well as state and election officials.
Trump spent months filing motions to dismiss the election subversion case, invoking everything from vindictive prosecution to total immunity, but was eventually scheduled to go to trial in March 2024.
He eventually raised the question of whether presidents were entitled to immunity from prosecution to the Supreme Court, leaving the case in a lurch for weeks until justices ruled, 6-3, that presidents are immune from prosecution for “official” acts and entitled to “presumptive immunity” for unofficial acts.
Smith revised and narrowed the original indictment to reflect the Supreme Court’s interpretation of immunity rules. His revised indictment would have forced Trump to defend certain conduct, including his speech from the Ellipse in Washington on January 6 and his calls pressuring election officials to “find” votes for him, as “official” activity instead of campaign activity.
But Trump’s victory over Vice President Kamala Harris in November sealed the case’s fate: It was dismissed without prejudice, meaning it could be brought again at a later date. Since Justice Department guidance recommends that sitting presidents cannot be sentenced, however, Smith backed off.