Mar 25
One of the documents Trump kept was so sensitive that only six people were authorized to view it.
The special counsel’s office found that Donald Trump held on to documents so secret that only six people could legally review them — and the
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One of the documents Trump kept was so sensitive that only six people were authorized to view it.
The special counsel’s office found that Donald Trump held on to documents so secret that only six people could legally review them — and the
President Donald Trump is urging U.S. District Judge Aileen Cannon to block any release of Special Counsel Jack Smith’s final report on his
David Badash at NCRM:
President Donald Trump is urging U.S. District Judge Aileen Cannon to block any release of Special Counsel Jack Smith’s final report on his investigation into the president’s alleged mishandling of hundreds of classified documents, in a case that had been charged in part under the Espionage Act. On Tuesday, Trump argued in a court filing that Smith’s report should never be made public, in what would be a deviation from previous practice, Politico reported.
The president urged Cannon, whom he nominated to the bench, “to extend her 11-month-old order blocking the Justice Department from releasing the full report, which Smith submitted shortly before Trump’s second inauguration.” In the court document, Trump’s attorney, Kendra Wharton, wrote that allowing the report to become public would “perpetuate Jack Smith’s unlawful criminal investigations and proceedings.” Politico noted that the president’s filing “is infused with the typical disdain Trump has expressed for his former prosecutors, labeling Smith a ‘so-called special counsel’ and saying the case was ‘marred by numerous deficiencies and repeated abuses of office.'” Smith dropped all charges against Trump after the U.S. Supreme Court, in a highly controversial ruling, found that presidents have extensive immunity from prosecution for official acts.
Criminal-in-Chief Donald Trump wants Special Counsel Jack Smith’s report kept from being seen the light of day, because it would accurately describe his criminality.
Chumlum
Ron Rice, 1964
But prosecutors say an expected two-volume report detailing charging decisions for Donald Trump should be partially held back.
Brandi Buchman at HuffPost:
Special counsel Jack Smith’s highly anticipated report on his charging decisions in Trump’s Jan. 6 election subversion case will be made public, federal prosecutors said Wednesday, but the same cannot be said of information underpinning Trump’s classified documents case.
Details from that now-dismissed classified documents case should be held back from public view, federal prosecutors said Wednesday, because litigation is still underway in Florida against Trump’s valet and his Mar-a-Lago estate property manager. The disclosure was made in federal appellate court by Deputy Assistant Attorney General Brian Boynton in response to a recent request from Waltine Nauta, Trump’s valet, and Carlos De Oliveira, his property manager, to stop the publication entirely. Boynton said this was unnecessary. Smith, he wrote, already recommended to Attorney General Merrick Garland that to “avoid any risk of prejudice” to Nauta and De Oliveira, it would be best to release only information about the Jan. 6 charging decisions so long as criminal proceedings are pending against Nauta and De Oliveria. The report will, however, be available for private review by members of the House and Senate Judiciary Committees.
Special Counsel Jack Smith’s findings in the Capitol Insurrection probe will be released by the DOJ. The findings in the classified document theft case, however, won’t be made public at this time due to litigation still ongoing.
See Also:
The Guardian: DoJ to release part of report on Trump’s attempt to overturn 2020 election
Daily Kos: DOJ to release half of Jack Smith’s report on Trump
Prosecutors had a mountain of evidence — but a series of key obstacles got in their way.
Brandi Buchman at HuffPost:
What happened at the U.S. Capitol on Jan. 6, 2021, according to many of the nation’s courts and judges, was an insurrection by the very definition of the word. So why, at the end of a yearslong probe, did special counsel Jack Smith ultimately forgo charging Donald Trump with inciting one? The answer was spelled out in Smith’s charging report to Attorney General Merrick Garland that went public on Tuesday. The report was an unambiguous presentation of why Trump’s alleged criminal effort to unlawfully retain power left prosecutors no choice but to charge him with four felonies. A federal judge (and Smith) only agreed to dismiss the case because Trump won the election in November and prosecutions against sitting presidents are against long-standing Justice Department policy. Smith’s report could be the final word any prosecutor ever has on Trump and Jan. 6. However, if prosecutors or congressional lawmakers can convince courts (and each other) in the coming years that an existing five-year statute of limitations for federal cases isn’t on pause while Trump is president, then Smith’s report may not be the end of one story, but the beginning of another. First, to understand where Smith ended up, a bit of history is necessary.
The Mile-High Road To Nowhere
In November 2023, Colorado District Court Judge Sarah Wallace ruled that Trump engaged in an insurrection against the Constitution in violation of Section III of the 14th Amendment.
The judge’s ruling stemmed from a lawsuit brought by six Republicans in Colorado and one unaffiliated voter who wished to remove Trump from the ballot ahead of the 2024 election. They argued that Trump’s remarks from the Washington Ellipse on Jan. 6, his alleged intimidation of voters and election and state officials, his failure to immediately call down the mob, and his alleged pressure campaign on then-Vice President Mike Pence to overturn the results of the 2020 election amounted to insurrectionary acts, and therefore his ouster from the ballot in Colorado was warranted. The voters argued that while Trump may not have engaged in violence personally on Jan. 6, that element did not need to be proven in order for him to be disqualified from the ballot. They claimed it was simpler than that, because Trump violated his oath to uphold and defend the Constitution and spent “three hours watching [the events] unfold on television without doing a single thing even though he was the most powerful person in the world,” a lawyer for the voters argued in court. In her 2023 ruling, Wallace said she was convinced Trump had “engaged” in insurrection, based on the harrowing evidence and testimony she’d considered. But she could not disqualify him.
Disqualification hung on a persnickety distinction: Section III, or the insurrection clause, did not actually consider whether the president of the United States was considered an “officer” of the United States, Wallace found. Section III of the 14th Amendment states: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.” For “whatever reason,” Wallace wrote in her ruling, the drafters of the Constitution’s insurrection clause “did not intend to include a person who had only taken the presidential oath,” and it wasn’t for her court to decide what the drafters meant.
Trump fought the ruling all the way up to the Colorado Supreme Court, which ruled against him in December 2023. In a 4-3 decision, the state justices concluded that Trump was an officer of the United States, that he engaged in insurrection and that he must be removed from the ballot on those grounds. Trump appealed to the U.S. Supreme Court, and in March 2024 — one day before Super Tuesday primaries — the nation’s most powerful court ruled for the first time in its history on how to apply the insurrection clause. They reversed the Colorado Supreme Court’s ruling and declared that Colorado’s secretary of state had no authority to remove Trump from the ballot. While states could disqualify a person from running for office or holding it, the insurrection clause was something Congress alone had the power to enforce or modify, the court ruled.
Seeing Donald Trump walk away unscathed for inciting the January 6th insurrection is a massive failure.
See Also:
Public Notice: Jack Smith reminds us of the futility of truth in the Trump era
Against the wishes of President-elect Donald Trump, the report is now public.
Brandi Buchman at HuffPost:
The Justice Department delivered part of special counsel Jack Smith’s report to Congress early Tuesday morning, explaining 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 U.S. Capitol on Jan. 6, 2021.
[...]
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 Jan. 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.
The DOJ delivered to Congress a portion of Special Counsel Jack Smith’s report on the special counsel’s investigation into Donald Trump’s conduct on efforts to overturn the 2020 election and the January 6th, 2021 insurrection that he incited. The report revealed that Trump likely would have been been convicted and sentenced to some jail time and/or fined very heavily had he lost the election last November.
Since Trump won, however, Smith dismissed the case without prejudice due to the DOJ’s longstanding guidelines that sitting Presidents cannot be sentenced.
It’s a real shame that Trump was let off the hook for his rule of inciting the Capitol Insurrection.
See Also:
NYT: Special Counsel Report Says Trump Would Have Been Convicted in Election Case
The Guardian: Donald Trump would have been convicted over 2020 election, special counsel report says
CBS News: Special counsel's final report says Trump would have been convicted of election interference if he hadn't won
Jack Smith's indictment in DC identified 5 other co-conspirators, and there are other major figures in the story. None have immunity. Yet no
Tristan Snell:
Shortly after the release of the Jack Smith report on the January 6 case against Donald Trump, every major legacy media outlet released its “takeaways” from the report. And every single one of those outlets missed the two most glaring problems about this case. First, there is either an elision or a mischaracterization of DOJ’s internal memoranda that concluded that a sitting president may not be prosecuted. The elision is simply not to mention it at all, gliding right over it with an oh-well assumption that because Trump won the election, the case must die. The mischaracterization is to refer to the memos as “binding” without further explanation, when the memos do not have the force of law. They merely constitute internal guidance within the department. These policies can and could have been changed at any time. Not to be too flippant, but in the same way that DOJ could change its policies around casual Fridays and how parking spots are allocated, they could change their policies around whether they’re allowed to indict their boss. It was a make-believe policy in the first place — relics of the two next most recent times that a president was in legal jeopardy, Richard Nixon during Watergate and Bill Clinton during the Lewinsky scandal. Those two times, DOJ decided that they did not want to indict their boss. Rather than admit that that was their motivation, they passively-aggressively pinned it on the burden it would supposedly cause. Oh, gosh, it would be such an inconvenience for him — it’d really mess up his schedule. He’s just way too busy to get prosecuted. And now? DOJ’s cop-outs have risen into a Frankenstein’s monster of a legal argument, taking on a life of its own, climbing off the table and setting off on a murderous, arsonous rampage. At the very least, DOJ could have issued a new memorandum clarifying that its policy eschews indictment of a sitting president — but that an indicted individual may still be brought to trial even after becoming president. After all, DOJ’s spurious argument is that presidents must not be distracted from their constitutional duties by a prosecution — it’s really about attention and surprise. I have to run the free world, and now you want to indict me! But that argument does not hold up if an already-indicted person becomes the president. The criminal cloud above them was already there. By seeking the presidency, they already knew what they were getting themselves into — that they would have to deal with the case while in office. The White House should not be an asylum from which to escape criminal consequences. None of this has been discussed or questioned in any serious way by mainstream outlets — and this is an absolutely appalling lapse, another example of our sleepwalking into a lazy, cozy fascism of failing to question authority. Yet there is a second glaring problem with the DOJ case against Trump — and again it is somehow getting missed. Why didn’t anyone else get indicted? Smith’s indictment identifies and numbers six co-conspirators, who appear to be:
Donald Trump
Rudy Giuliani
John Eastman
Sidney Powell
Jeffrey Clark
Boris Epshteyn
All of these other individuals have been implicated in Trump’s conspiracy and its various crimes — with the ultimate goals of stopping or delaying the January 6, 2021 certification of the Electoral College results, with fake elector documents waiting on standby, so that the election could be thrown to the House of Representatives, where Republicans would likely prevail and vote Trump into office despite very obviously losing the election.
[...] And exactly zero of these people are immune. None of the arguments for presidential immunity apply to any of the president’s aides, no matter how senior. In fact, even in DOJ’s misguided memos on presidential immunity, they determined that even the vice president lacks any such status and can absolutely be prosecuted while in office. So why weren’t any of these people indicted? When Trump was indicted in August 2023, it seemed like a shrewd move only to indict Trump. To have a sole defendant would streamline and speed up the trial calendar — it made Jack Smith’s January 6 case the most potentially lethal of the various cases against Trump that emerged that year. That all changed with the Supreme Court’s involvement in the immunity issue: not only the decision itself but the delay that it injected into the process (which, of course, was really the primary goal of Trump’s lawyers). Yet SCOTUS issued its immunity ruling on July 1. Over six months ago. As soon as that decision came down — with its mandate that the district court engage in a fact-intensive inquiry as to whether the various acts alleged in the case were “official acts” of the presidency — the need for speed in the case went out the window. At that precise moment, there was no longer a rationale for only indicting Trump. Literally everyone I spoke to about this case that summer expected that DOJ was busily hammering out indictments of the other co-conspirators and that we would see those indictments by the end of the summer, or by September at the latest. They never came. I cannot fathom what happened here. Was there just such a devastating blow to morale that prosecutors could not figure out what to do? Was there a worry that indicting the other co-conspirators would look too politically motivated? The latter does not make sense. To indict Trump — the actual candidate for president and leader of the Republican Party — but not his underlings, for fear of appearing political? Yes, the election season was in full swing by the summer, but DOJ could have stood firm on the position that the timing of the additional indictments was driven by SCOTUS, not the election. Once again, as has been the tragic tale throughout this case and many of the others, prosecutors’ Hamletian excess of caution has been fatal.
The DOJ’s decision to not prosecute Donald Trump’s co-conspirators was a terrible decision.
And Yes, He's Guilty as Hell!
David Pepper at Pepperspectives:
Like Project 2025 and the Mueller Report, most Americans will not read the Jan. 6 Report released by Jack Smith early this morning. So I thought it would be of service to read, review and summarize it for my subscribers. I will focus on facts and arguments that are new or less known: In his cover letter, Smith summarizes: “after conducting thorough investigations, I found that, with respect to both Mr. Trump's unprecedented efforts to unlawfully retain power after losing the 2020 election and his unlawful retention of classified documents after leaving office, the Principles compelled prosecution. Indeed, Mr. Trump's cases represented ones “in which the offense [was] the most flagrant, the public harm the greatest, and the proof the most certain." Jackson, "The Federal Prosecutor."
The Report:
Overall
“As alleged in the original and superseding indictments, substantial evidence demonstrates that Mr. Trump…engaged in an unprecedented criminal effort to overturn the legitimate results of the election in order to retain power. Although he did so primarily in his private capacity as a candidate, and with the assistance of multiple private co-conspirators, Mr. Trump also attempted to use the power and authority of the United States Government in furtherance of his scheme…” “[W]hen it became clear that Mr. Trump had lost the election and that lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power. This included attempts to induce state officials to ignore true vote counts; to manufacture fraudulent slates of presidential electors in seven states that he had lost; to force Justice Department officials and his own Vice President, Michael R. Pence, to act in contravention of their oaths and to instead advance Mr. Trump's personal interests; and, on January 6, 2021, to direct an angry mob to the United States Capitol to obstruct the congressional certification of the presidential election and then leverage rioters' violence to further delay it.…” “The throughline of all of Mr. Trump's criminal efforts was deceit—knowingly false claims of election fraud—and the evidence shows that Mr. Trump used these lies as a weapon to defeat a federal government function foundational to the United States' democratic process.”
The Facts
Trump Knew His Claims Were False
“The Office investigated whether Mr. Trump believed the claims he made. Evidence from a variety of sources established that Mr. Trump knew that there was no outcome-determinative fraud in the 2020 election, that many of the specific claims he made were untrue, and that he had lost the election. He knew this because some of the highest-ranking officials in his own Administration, including the Vice President, told him directly that there was no evidence to support his claims….State officials and legislators whom Mr. Trump pressured to change vote tallies or stop certifications of results rebuffed him and informed him that his fraud claims were wrong, both privately and through public statements….”
“[S]tate officials-better positioned than Mr. Trump to know the facts in their states-repeatedly told Mr. Trump that his fraud claims were unfounded and that there was no evidence of substantial election fraud in their states…” “Mr. Trump and co-conspirators could not have believed the specific fraud claims that they were making because the numbers they touted-for instance, of dead voters in a particular state- frequently vacillated wildly from day to day or were objectively impossible…” “Finally, at times, Mr. Trump made comments implicitly acknowledging that he knew he had lost the election. For example, in a January 3, 2021 Oval Office meeting regarding a national security matter, Mr. Trump stated in part, "[I]t's too late for us. We're going to give that to the next guy," meaning President-elect Biden.”
Pressure on State Officials To Change Results
“Mr. Trump contacted state legislators and executives, pressured them with false claims of election fraud in their states, and urged them to take action to ignore the vote counts and change the results. Significantly, he made election claims only to state legislators and executives who shared his political affiliation and were his political supporters, and only in states that he had lost….” Trump not only appealed to partisan loyalty to get officials to change outcomes (Arizona — "we're all kind of Republicans and we need to be working together”), he made threats to those who wouldn’t cooperate (Georgia — “not reporting it ... that's a criminal offense. And you know, you can't let that happen. That's a big risk to you ....").
The Fraudulent Elector Plan
“Under this plan, they would organize the people who would have served as Mr. Trump's electors, had he won the popular vote, in seven states that Mr. Trump had lost-Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin-and cause them to sign and send to Washington false certifications claiming to be the legitimate electors.3 Ultimately, as explained below, Mr. Trump and co-conspirators used the fraudulent certificates to try to obstruct the congressional certification proceeding….” [...]
January 6 Certification Plan
“At the same time that Mr. Trump's elector nominees in the targeted states were preparing to gather and cast fraudulent votes, his co-conspirators were planning to use them to overturn the election results at the January 6 certification….” “On December 13, Co-Conspirator 5 sent Co-Conspirator 1 a memorandum that envisioned a scenario in which the Vice President would use the fraudulent slates to claim that there were dueling slates of electors from the targeted states and negotiate a solution for Mr. Trump to seize power. And on December 16, Co-Conspirator 5 traveled to Washington with a group of private attorneys who had done work for Mr. Trump's Campaign in Wisconsin for a meet-and-greet with Mr. Trump in the Oval Office; as the group left, Co-Conspirator 5 had a direct, private conversation with Mr. Trump. Days later, on December 19, Mr. Trump publicly posted a Tweet demonstrating his own focus on the certification proceeding and directing his supporters to gather in Washington, D.C., to oppose it.”
Conclusion
“The parties were in the middle of th[e litigation] process when the results of the presidential election made clear that Mr. Trump would be inaugurated as President of the United States on January 20, 2025. As described above, it has long been the Department's interpretation that the Constitution forbids the federal indictment and prosecution of a sitting President, but the election results raised for the first time the question of the lawful course when a private citizen who has already been indicted is then elected President. The Department determined that the case must be dismissed without prejudice before Mr. Trump takes office, and the Office therefore moved to dismiss the indictment on November 25, 2024…. The Department's view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not tum 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. 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.”
David Pepper has a complete and handy guide to Special Counsel Jack Smith’s final report on the January 6th Insurrection.