Jack Smith’s Jan. 6 Report Sheds Light on Crimes Trump Dodged

Were it not for President-elect Donald Trump’s election victory, an investigation found that there was enough evidence to convict him in a trial for his crimes.

Special counsel and former Assistant U.S. Attorney Jack Smith spent the past two years investigating Trump for two separate criminal investigations: on the unlawful possession of highly classified documents at his Mar-a-Lago resort; and his attempt to subvert the results of the 2020 election, which culminated in the deadly riot at the U.S. Capitol on Jan. 6, 2021. The full details of the classified documents case is still under wraps, but on Tuesday, Smith released his final report documenting Trump’s attempts to subvert the 2020 election. 

This conclusion is, of course, moot: Smith dropped the investigation after Trump’s election victory, citing the U.S. Department of Justice’s (DOJ) longstanding policy against prosecuting sitting presidents. Still, the full report nonetheless offers the most comprehensive view yet into the overwhelming evidence of Trump’s alleged election subversion crimes.

Trump was charged in August 2023 with four counts for his efforts to overturn the results of the 2020 election: Conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding and conspiracy against the right to vote and have one’s vote counted.

“[F]or more than two months following election day on November 3, 2020, the Defendant [Donald Trump] spread lies that there had been outcome-determinative fraud in the election and that he had actually won,”  the indictment read. “These claims were false, and the Defendant knew that they were false.” 

Throughout the 137-page report, Smith presents an overwhelming amount of evidence to back up the charges in the indictment. But one crime the special counsel didn’t charge Trump with was “incitement of insurrection” under the Insurrection Act. The report explains how, despite the evidence that Trump’s speech on the Ellipse the morning of Jan. 6 likely met the legal standard for an incitement of violence, no one’s ever been prosecuted for incitement of an insurrection. Therefore, the special counsel deemed the risk was too great to try and prosecute Trump with such a crime — especially since the other crimes Trump was charged with were sufficient to secure a conviction.

Incitement of insurrection wasn’t the only charge that Smith’s team considered for Trump. The report reveals that the special counsel considered charging Trump with “conspiracy to impede or injure an officer of the United States” but claimed they could not prove beyond a reasonable doubt that the president’s conspirators agreed to threaten force or intimidation against federal officers.

Of course, Trump wasn’t the only person who bore responsibility for attempting to overturn the 2020 election, and Smith’s report found evidence that some individuals shared criminal culpability with Trump. The report doesn’t name anyone but does say that one subject who was considered a co-conspirator was referred to a U.S. Attorney’s Office for investigation for crime in an unrelated matter. Before Smith dismissed the case, his team found that there was some admissible evidence to justify charging certain co-conspirators along with Trump, but the report ultimately didn’t reach any conclusions on whether those individuals should have been charged jointly with Trump or under separate indictments.

Before Trump’s reelection in November became the final nail in the coffin of Smith’s doomed investigation, there was the matter of the U.S. Supreme Court’s landmark immunity ruling, which found that presidents are immune from being prosecuted for official acts. This, understandably, had an impact on how the government could convict Trump. 

“Before this case, no court had ever found that Presidents are immune from criminal responsibility for their official acts, and no text in the Constitution explicitly confers such criminal immunity on the President,” the report reads.

Prior to charging Trump, Smith’s team thoroughly reviewed the Supreme Court precedent, longstanding DOJ policy and previous special counsel investigations and determined that Trump did not have absolute immunity for his conduct Jan. 6 because his actions were private, unofficial conduct in his role as a defeated candidate. Still, the investigation found several unresolved questions related to the Supreme Court’s presidential immunity ruling, including the full scope of the “core exercises of presidential power,” what counts for overcoming presumptive immunity for non-core presidential conduct and what evidence of official acts could and could not be used when prosecuting a former president.

With Trump’s imminent return to the White House on Monday, these questions will remain unanswered. The report is Smith’s final act as special counsel — amid sustained rhetoric from Trump about firing Smith as soon as he becomes president, Smith resigned from his post. But his report will linger throughout Trump’s presidency, especially its ultimate conclusion: “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.”

Research contributed by Aba Tieku and Fiona Hatch