Copyright Slate
Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. After several months of keeping a relatively low profile, Jack Smith is back in the public eye—or at least, he’s asking to be. The former special counsel is seeking permission to testify before Congress about his criminal investigations into Donald Trump, and he’d like to share details about the unreleased second volume of his final report. Over the past few weeks, the Trump administration and Republicans have been making moves to investigate Smith for alleged illegal political activity. In a letter to the leaders of the House and Senate Judiciary Committees last week, Smith said he wants to testify publicly in order to correct “the many mischaracterizations” flying around about his investigations. Smith’s classified documents case and election interference case were both dismissed last year following the Supreme Court’s bombshell presidential immunity decision and Trump’s reelection (Justice Department policy prevents a sitting president from being prosecuted). And though Smith resigned from his role as special counsel weeks before Trump would be inaugurated, Smith has remained on the president’s—and the GOP’s—enemies list. It’s not clear if anyone has responded to Smith’s letter yet, but this week Senate Judiciary Committee Chair Chuck Grassley told Politico he’s preparing for Smith’s testimony. “We’ve got a lot of document requests,” Grassley said. “We’ve got to have all the information, because I’ll tell you Jack Smith and the other people we’re going to invite, they have all the answers. We got to make sure that their answers are correct.” What has Smith been dealing with since he left his job at the Justice Department, and what’s he been doing recently? Let us fill you in. Trump DOJ Launches Investigation Into Smith In early August, the Office of Special Counsel—the very same office Smith oversaw just one year ago—told CBS News it had launched an investigation into Smith, alleging he violated the Hatch Act, a federal law banning government employees from certain political activities. Back in July, Republican Sen. Tom Cotton insisted the DOJ initiate an investigation into Smith, claiming in a series of messages on X that Smith had engaged in political activity on behalf of former President Joe Biden and Vice President Kamala Harris. Cotton accused Smith of wanting a “rushed trial” for Trump, bypassing normal processes when he went to the Supreme Court over the Jan. 6 case and submitting a “procedurally irregular” brief too close to Election Day. In December 2023, Smith sought the Supreme Court’s opinion because Trump’s defense team continuously argued their client was protected from prosecution by absolute presidential immunity. The tactic significantly slowed Smith’s case, and so the special counsel took it up with the Supreme Court, acknowledging “this is an extraordinary request,” but that “this is an extraordinary case.” The justices ultimately denied Smith’s request—only to take up the very same question weeks later when Trump’s lawyers asked. In September 2024, shortly after the Supreme Court issued its immunity decision, Smith acknowledged he would be submitting a lengthy brief in the election interference case, but requested he be able to go over the page limit. That’s because this particular brief contained analysis of Trump’s actions ahead of the Jan. 6 insurrection and which ones should be considered official or unofficial, in compliance with the Supreme Court’s immunity decision. Republicans Reveal Smith Tapped GOP Lawmakers’ Phone Records In early October, Grassley said that the FBI had requested phone records of eight Republican senators back in September 2023 which were eventually used in Smith’s Jan. 6 investigation. “BIDEN FBI WEAPONIZATION = WORSE THAN WATERGATE,” the 92-year-old Iowa Senator proclaimed on X, alongside a copy of the FBI’s request. Smith’s attorneys defended his use of the phone records, which they said were used only after Smith secured a grand jury subpoena. The lawyers pushed back on assertions that Smith had “tapped,” “spied on,” or “surveilled” Republicans, explaining that the records only revealed incoming and outgoing phone numbers, the time of the calls, and their durations. “Wiretapping, by contrast, involves intercepting the telecommunications in real time, which the Special Counsel’s Office did not do,” the lawyers wrote. Smith’s lawyers also said it’s fairly standard for federal investigations to access the phone records of sitting members of Congress. “During President Trump’s first term, the Justice Department purportedly obtained communications records of two Democratic Members of Congress—Rep. Eric Swalwell and then-Rep. Adam Schiff—and forty-three congressional staffers in connection with an investigation into media leaks,” the lawyers wrote. Indeed, in 2021, the New York Times reported that during Trump’s first term, federal prosecutors subpoenaed Apple for data on Democrats serving on the House Intelligence Committee after classified information was leaked to the media. Smith Defends His Work and Criticizes Trump’s Weaponization of the DOJ Smith emerged for a rare public appearance earlier this month, speaking before a crowd at the University College London about his experience investigating Trump and weighing in on how the president is running the Justice Department. According to CNN, Smith insisted politics played no role during his time at the DOJ. “It’s absolutely ludicrous and it’s totally contrary to my experience as a prosecutor,” he said. Prosecutors working both the classified documents and Jan. 6 cases were similarly apolitical. “These are team players who don’t want to do anything but good in the world. They’re not interested in politics,” Smith argued. But Trump’s DOJ, Smith said, is doing the exact opposite. He commented on the recent indictment of former FBI Director James Comey and how charges were brought only after Trump’s former personal attorney Lindsey Halligan was appointed. “The career prosecutors, the apolitical prosecutors who analyzed this said there wasn’t a case, and so they brought somebody in who had never been a criminal prosecutor on days’ notice to secure an indictment a day before the statute of limitations ended,” Smith said. “That just reeks of lack of process.” Smith also offered his candid thoughts on the Supreme Court’s immunity decision, which ultimately derailed his Jan. 6 case against Trump. Admitting that he did not agree with the high court’s decision, Smith said he was concerned that the message being sent from above was “tantamount to saying you can never prosecute powerful, high officials.” He also insisted that despite his disagreement with SCOTUS, “there was never a question that we were going to follow the law as the Supreme court said the law now was.”
