Jack Smith Testifies

Summary

UnJustified: “Jack Smith Testifies” (Jan 4, 2026)

Host: Allison Gill (MSW Media)
Guest: Jack Smith (Special Counsel)
Special Contributor Absent: Andrew McCabe

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Episode Overview

This landmark episode breaks down the recently released transcript and video of Special Counsel Jack Smith’s closed-door testimony before the House Judiciary Committee, focusing on the integrity of the Department of Justice’s investigations into Donald Trump’s efforts to overturn the 2020 election and mishandling of classified documents. Host Allison Gill, armed with deep familiarity with the case, curates pivotal excerpts accompanied by commentary, highlighting Smith’s detailed, calm refutation of right-wing conspiracy theories and political attacks, his unwavering defense of his team, and the broader implications for rule of law in America.

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1. Introduction: Why Jack Smith's Testimony Matters

[00:54–03:39]

• Gill sets the stage: Emphasizes the uniqueness of Smith’s measured, unflappable congressional appearance, comparing his command of detail favorably to Robert Mueller’s 2019 testimony.
• Purpose of episode: To curate and analyze significant moments from Smith’s testimony, focusing on facts, debunking misinformation, and exploring ramifications for justice and democracy.

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2. Jack Smith’s Opening Statement: Clear, Unapologetic, Evidence-Based

[03:39–07:48]

• Smith’s approach: Asserts his obligation to “follow the facts in the law and to do so without fear or favor.”
• Core allegations restated: Trump “engaged in a criminal scheme to overturn the results of the 2020 election...and willfully retained highly classified documents,” with repeated obstruction.
• Republican narratives rebutted: Refutes claims about “rogue prosecution” or illegal acts in collecting call logs (“toll records”).
• Smith’s integrity: “If asked whether to prosecute a former president based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat.” (06:30)
• Memorable Moment – Direct accountability: “The decision to bring charges against President Trump was mine, but the basis for those charges rests entirely with President Trump and his actions...” (03:59)

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3. Systematic Debunking of GOP Conspiracy Theories

A. Relationship with DOJ Leadership

[09:15–11:08]

• Smith rebukes “rogue prosecutor” narrative, clarifying his procedural meetings with AG Garland:
  Smith: “Never in those meetings did he [Garland] tell me I couldn’t or shouldn’t go forward...” (10:40)
• Smith chose, not Garland, to consult the Solicitor General regarding anticipated First Amendment claims.

B. No Collusion with State Prosecutors/Other Investigations

[11:48–13:51]

• Smith categorically denies coordination with state AGs (Arizona, Georgia), clarifying that information exchanges were minimal and not substantively investigative.

C. Handling and Disclosures of January 6 Committee Evidence

[14:51–19:21]

• Smith details efforts to acquire evidence from the January 6 Committee, refuting GOP claims of Democratic coverup or destroyed evidence:
  • “We disclosed to the defense everything we got.” (16:50)
  • Defensive access to hard drives from the Committee, including all handed-over files and transcripts.

D. Allegations of Election Interference

[20:10–25:59]

• Smith rejects claims he rushed cases for political effect or violated DOJ policy: Smith: “We were trying to move these cases expeditiously... the public’s right [to a speedy trial] as well.” (21:17)
  • Affirms that requests to file evidence under seal to avoid ‘interference’ were not opposed by his team; the court denied them (23:04–25:59).

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4. Mar-a-Lago Search, Document Handling, & Judicial Procedures

Decision for the Search

[28:18–30:34]

• Smith underscores that the Mar-a-Lago search was a standard, court-approved law enforcement action, dismissing “banana republic” accusations: Smith: "The search... was conducted pursuant to a warrant... as the DOJ and FBI does every day." (29:45)

Accusations Re: Library Intent or Security

[31:23–34:28]

• GOP suggesstion that Trump retained items for “his presidential library”: Smith: “If his defense were that he was intentionally taking classified documents to start a presidential library... that’s a crime.” (31:36)
• Mari-a-Lago’s Secret Service presence did not constitute document security; the agents were unaware of the documents (33:20).

Judge Cannon and Judicial Recusal

[34:28–35:12]

• Smith firmly avoids discussing potential moves to disqualify Judge Cannon, citing confidentiality and adherence to public filings only.

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5. Weaponization Claims & Charging Decisions

[37:07–39:19]

• Smith explains he considered charging additional co-conspirators but had not concluded on that before the office was shut down post-election.
• Rep. Jasmine Crockett (via Jamie Raskin) helps Smith emphasize fundamental prosecutorial ethics: Smith: "...you're not supposed to go after people who you believe are not guilty." (39:02)
• On needing to re-indict repeatedly: “Never.” (39:17)

Detailed Refutations of Election-Fraud Myths

[39:37–42:05]

• In response to revived Pennsylvania fraud claims: Smith: “...a lot of these issues were raised in the courts. I think Donald Trump lost those litigations.” (41:48)

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6. Right-Wing Conspiracies: FBI Informants, “Threats”, and Misconduct

[42:42–45:02]

• Smith confirms some FBI confidential informants were present on Jan 6, but no undercover officers and “the idea that this was a ‘Fed inside job’” is baseless.
• Alleged intimidation of witnesses’ lawyers by DOJ—Smith thoroughly explains the actual events and investigative transparency, highlighting the insubstantial nature of the accusations.

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7. Republicans’ Primary Grievance: Subpoenaed Congressional Toll Records

[53:50–62:31]

• Extended GOP outrage focused on Smith’s lawful acquisition of phone toll records (not content), used to document event chronology and communications relevant to the investigation.
  • Smith stresses these actions were necessary, legal, and demanded by facts: Smith: “Who should be accountable for this? Donald Trump. These records... Donald Trump directed his co-conspirators to call these people.” (57:45)
  • Examples given: validating communications between Trump, Mark Meadows, Jim Jordan, Kevin McCarthy, and others on Jan 6th.

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8. Smith’s Prosecutorial Strategy: Law, Not Politics

Charging Trump under 18 USC 241 (Conspiracy Against Rights)

[63:07–65:14]

• Chose the statute because of Trump’s targeting of the voting rights of millions, supported by key evidence (asking Georgia’s Secretary of State to “find 11,000 votes”; focus on urban/Black districts). Smith: “We had strong evidence that the defendants... sought to interfere with... that right [to vote].” (63:56)

Proof That Trump and Allies Didn’t Believe the Big Lie

[65:59–69:34]

• Direct evidence from interviews: Giuliani and Trump admitting (in private) disbelief in the fraud claims they promoted.

On Not Immunizing Bannon/Stone

[69:50–70:55]

• Refused to immunize uncooperative witnesses (Stone, Bannon, Navarro): “The information... wasn’t worth immunizing them for their own possible conduct.” (70:18)

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9. Evidence of Trump’s Knowing Fraud

[71:16–77:42]

• Smith recites key knowingly false claims (e.g., the ‘Red Mirage’ in PA, fraud in MI/GA), showing Trump was pre-briefed these phenomena would happen – yet lied about them being fraudulent. Smith: “He only brought fraud claims that involved states that he lost. He only approached people... who had party allegiance to him.” (73:07)
• Trump explicitly acknowledged (privately) losing: “Can you believe I lost to this effing guy?” (75:43)
• Would have built the case at trial around powerful GOP witnesses, plus Trump’s own admissions.

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10. Supreme Court Immunity Ruling Debunked as Exoneration

[78:03–79:26]

• Ruling expanded presidential immunity, but Smith disagrees with outcome, emphasizes “the evidence that we had after that decision remained powerful.” Smith: “I do not see that [ruling] as an exoneration.” (78:20)

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11. Pardons, Rule of Law, and Threats to Democracy

On Trump’s Pardons of January 6th Offenders

[79:38–83:09]

• Smith sharply criticizes Trump’s mass pardons for Jan 6th convicts.
  Smith: “I just don’t understand why you would pardon people who assaulted law enforcement... I think it sends lots of messages... I think pardoning people who assaulted them is wrong.” (82:00)
• Predicts further crimes by released offenders.

Professional Retaliation and Harm to DOJ

[98:55–100:19; 100:27–105:05]

• Emotional recounting of career DOJ/FBI staff being fired for doing their jobs. Smith: “He got fired for doing his job two weeks after his wife died... No reason a person like that should have to go through that... I just think that's wrong.” (99:00)

• Documents White House Executive Order suspending security clearances/contracts for Smith’s attorneys and firm solely because of their work for Smith. Smith: “[The EO's purpose is] to seek retribution against me... to chill people from having an association with me.” (104:41)

• Memorable moment on intimidation:
  Jamie Raskin: “Have you yourself been intimidated as a result of the actions that you in this case?”
  Jack Smith: “I’m not going to be intimidated. I will not be intimidated.” (106:32–106:35)

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12. The Legal Reality of First Amendment Limits

[94:18–96:44]

• Smith concisely lays out why Trump’s conduct went far beyond protected speech: Smith: “He was free to say that he thought he won... But what he was not free to do was violate federal law and use knowingly false statements about election fraud to target a lawful government function.” (95:25)
• “There is a very clear carve-out for fraud in our case law... when you’re committing a fraud... that’s not protected by the First Amendment. ... This case was an affinity fraud.” (96:44)

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13. On Testifying Publicly, Transparency, and Defending DOJ

[88:51–92:50]

• Smith is adamant about defending his team and agrees to public testimony: Smith: “I wanted to speak for [my team]... I feel that they have been vilified in a way that I think is awful.” (91:01–92:27)

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14. Constraints on Testimony—Pending Sealed/Confidential Materials

[83:55–88:50]

• Judge Cannon’s order precludes Smith from discussing volume two of his report (details re: classified case, Kash Patel, etc.), with Smith adamant about not risking even the appearance of violating confidentiality.

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15. Allison Gill’s Reflections

[106:18–end]

• Gill concludes that Smith’s testimony—fact-driven, apolitical, and steely—demonstrates the qualities needed in future top DOJ posts.
  Gill: “I think his testimony demonstrates his apolitical nature, his command of facts and details are astounding... his willingness to follow the facts and the law without fear or favor, I think make him an excellent candidate for the job [of Attorney General].”

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Notable Quotes & Memorable Moments (with Timestamps)

• On the Basis for Charges:
  “The decision to bring charges against President Trump was mine, but the basis for those charges rests entirely with President Trump and his actions...” — Jack Smith [03:59]

• On DOJ Leadership’s Role:
  “Never in those meetings did [Garland] tell me I couldn’t or shouldn’t go forward. It was more talking through... the legal issues present in the cases...” — Jack Smith [10:40]

• On Mar-a-Lago Search:
  “The search... was conducted pursuant to a warrant... as the DOJ and FBI does every day. It was approved by United States Magistrate.” — Jack Smith [29:45]

• On the Toll Records:
  “Who should be accountable for this? Donald Trump. These records... Donald Trump directed his co-conspirators to call these people.” — Jack Smith [57:45]

• On Indicting Only Trump:
  “I had not made final determinations [about charging others]... but Trump was the central reason for this whole thing.” — Jack Smith [37:14–37:41, paraphrased]

• On Knowing Fraud:
  “He only brought fraud claims that involved states he lost... When he was told that a fraud claim wasn’t true, he didn’t stop making it.” — Jack Smith [73:07]

• On First Amendment and Fraud:
  “There is a very clear carve-out for fraud in our case law, Supreme Court... This case was an affinity fraud.” — Jack Smith [96:44]

• On Retaliation and Staff Dismissal:
  “He got fired for doing his job two weeks after his wife died... No reason a person like that should have to go through that.” — Jack Smith [99:00]

• Smith's Unbreakable Resolve:
  “I’m not going to be intimidated. I will not be intimidated.” — Jack Smith [106:35]

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Essential Segment Timestamps

• [03:39] – Smith’s opening statement (core themes, laying out facts)
• [11:08] – Rebutting “coordination” and state-level conspiracy narratives
• [16:46] – January 6 Committee evidence and transparency
• [21:17] – Pace of prosecution/Election interference claims addressed
• [29:45] – Mar-a-Lago search lawfulness
• [31:36] – “Presidential library” as legal defense rebuked
• [57:45] – On right-wing outrage over toll record subpoenas
• [63:56] – Why charge Section 241 (conspiracy against voting rights)
• [73:07] – Proof of Trump’s knowing deception
• [78:20] – Supreme Court immunity ruling not exoneration
• [82:00] – On pardoning Jan 6 attackers
• [95:25] – Free speech does not protect criminal conduct
• [99:00] – On staff retribution and Department culture
• [104:41] – On White House Executive Order targeting his attorneys
• [106:35] – Smith’s closing declaration of resolve

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Final Thoughts

Jack Smith’s testimony, dissected by Allison Gill, provides a rigorous fact check against a torrent of right-wing accusations, spotlighting the professionalism and impartiality of the Special Counsel’s work. The episode not only rebuts misinformation but also offers an inside look at the integrity, legal rigor, and principle required to protect the rule of law amid political turbulence. Smith’s repeated defense of career DOJ and FBI staffers and his refusal to be cowed by threats or intimidation stand as a quietly powerful rebuke to those seeking to undermine American democratic institutions.

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Recommended for:
Anyone seeking a thorough, engaging breakdown of the facts, strategies, and high-stakes political drama driving the Trump investigations—and what they reveal about justice in modern America.

Transcript

[Martin Sheen]

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[Alison Gill]

And thank you, MSW Media. Hi everybody, I'm Alison Gill and we're bringing you this very special episode of the Unjustified podcast in partnership with the Midas Touch Network. Now this is our first episode of 2026. And as you know, this past Wednesday, New Year's Eve, the majority on the House Judiciary Committee released the transcript of Jack Smith's recent interview conducted behind closed doors. And they followed that up shortly by releasing the video of that interview. Now, I immediately went to work carefully reading through this transcript multiple times. As you may know, former FBI deputy director Andy McCabe and I hosted a podcast about the special counsel's investigations into Trump. It was Jack. And as part of that podcast, I can guarantee you I have read every single motion, every brief, every word written by Jack Smith, every order from the district court, the appellate Court and the Supreme Court. We read every word of both. Volume one of Jack Smith's final report into the Record as a podcast, as well as his 165 page immunity brief that he filed with Judge Chutkan just before the election. I am very familiar with this case inside and out. And and after spending the last two days parsing the transcript and watching the video testimony, I decided to compile a series of clips to share the ones that stood out to me the most and I wanted to provide a little bit of commentary for you. Now, Andy McCabe is out this week, so I'm going to walk you through these carefully selected and curated clips. So thank you very much for being here. Now, Jack Smith's testimony is noteworthy for several reasons. His command of the facts, his calm demeanor, his recollection is on point, very different than Robert Mueller's public testimony in July of 2019. Jack Smith was so measured and so serious. He was unflappable and unimpeachable with his decades of experience, that it really made it hard for Republicans to feel comfortable spouting any of their ridiculousness that we generally hear from them now. Smith commanded respect, though that didn't really stop Jim Jordan or his staff from trying to get gotcha moments. But they failed at every turn. This is a very embarrassing piece of testimony for the Republicans on this committee, so let's start at the beginning with former special counsel Jack Smith's opening statement.

[Jack Smith]

Thank you for the opportunity to discuss my work as special counsel. I was taught as a young prosecutor to follow the facts in the law and to do so without fear or favor, to do the right thing the right way for the right reasons. For nearly three decades, I've been a career prosecutor. I've served during both Republican and Democratic administrations, and I've been guided by those principles in every role I've held. I continued to honor those principles when I was appointed to serve as special counsel in November of 2022. The decision to bring charges against President Trump was mine, but the basis for those charges rests entirely with President Trump and his actions as alleged in the indictments returned by grand juries in two different districts. Our investigation developed proof beyond a reasonable doubt that President Trump engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the lawful transfer of power. Our investigation also developed powerful evidence that showed that President Trump willfully retained highly classified documents after he left office in January of 2021, storing them at his social club, including in a ballroom and a bathroom. He then repeatedly tried to obstruct justice to conceal his continued retention of those documents. I remain grateful for the counsel, judgment and advice of my team as I executed my responsibilities. I am both saddened and angered that President Trump has sought revenge against career prosecutors, FBI agents, and support staff simply for doing their jobs and for having worked on those cases. These dedicated public servants are the best of us, and they have been wrongly vilified and improperly dismissed from their jobs. I made my decisions in the investigation without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election. We took our actions based on the facts and the law, the very lessons I learned early in my career as a prosecutor. We follow Justice Department policies and observed legal requirements. The timing and speed of our work reflects the strength of the evidence and our confidence that we would have secured convictions at trial. If asked whether to prosecute a former president based on the same facts today, I would do so regardless of whether that President was a Republican or a Democrat. Recent narratives about my team's work are false and misleading, including stories about our collection of toll records. Toll records were sought for historical telephone routing information collected after calls had taken place, identifying the incoming and outgoing call numbers, the time of the calls, and their duration. Toll records do not include the content of calls. Those records were lawfully subpoenaed and were relevant to complete a comprehensive investigation. January 6th was an attack on the structure of our democracy in which over 140 heroic law enforcement officers were assaulted. Over 160 individuals later pled guilty to assaulting police that day. Exploiting that violence, President Trump and his associates tried to call members of Congress in furtherance of their criminal scheme, urging them to further delay certification of the 2020 election. I did not choose those members. President Trump did. I hope that test, that my testimony today serves to correct, correct these mischaracterizations about my work. And to that end, I welcome your.

[Alison Gill]

Questions straight to the point. First, we've got powerful evidence, proof beyond a reasonable doubt that Trump tried to stop the peaceful transfer of power. He did a coup. And he willfully retained classified documents and obstructed justice. He also praised the people that worked on his team. Something that we don't see from this particular administration. We heard that Trump did this to himself. Were it not for Trump, we would not be here. We learned that the phone records collected from Republicans in Congress was legal and Trump was the reason for it. He picked those people. And also, finally, stop mischaracterizing my work. Kind of a callback to what Bill Barr did with the Mueller report. So let's talk about what I consider to be the standout moments in this interview. And I want to start with Jack Smith easily and swiftly debunking multiple right wing conspiracy theories. These are all Republican talking points that they brought up one by one.

[Interviewer/Committee Member]

And.

[Alison Gill]

And he continued to debunk. So early in the hearing, a staffer I think, for Jim Jordan tried to corner Jack Smith with the right wing conspiracy that Merrick Garland was against bringing the charges that somehow Jack Smith went rogue. I'm sure this is probably one of the bases for their criminal investigation into Jack Smith, which I'm sure will go nowhere. But Jack Smith shuts this down pretty handily. Here's that clip.

[Jim Jordan Staffer]

In June of 2023, you had a meeting with the Attorney General to present a prosecution memo and basically asking for his blessing to, to bring the indictments, Is that correct?

[Jack Smith]

I did. We did have a meeting, and I think it was around that time I didn't think about it as his blessing. I was presenting what I intended to do, and he had the ability to countermand that if he wanted to.

[Jim Jordan Staffer]

Okay, but certainly you couldn't bring an indictment without his authorization.

[Jack Smith]

He could. He could block me from doing that. That's correct.

[Jim Jordan Staffer]

Okay, and during that June 2023 meeting with the Attorney General, did you guys discuss both indictments, potential indictments, or just, just the Florida indictment or just the D.C. indictment if it was?

[Jack Smith]

I don't have a specific recollection of dates, and so you can check me on public records, but I believe by late June, the classified documents case had already been indicted. Okay, so again, this is my recollection, but that would have been a discussion in late June, would have likely been about just the elections case if it was about an indictment.

[Jim Jordan Staffer]

Okay. And the Attorney General in the, in the June meeting, it's been reported that he expressed some reservations about the D.C. case, is that correct?

[Jack Smith]

I had several meetings with the Attorney General about both cases, and in those meetings, we regularly discussed legal issues, factual issues, things of that nature. Never in those meetings did he tell me I couldn't or shouldn't go forward or should go forward. It was more talking through with another experienced lawyer the legal issues present in the cases, as well as if I was going to go forward, how to best frame those.

[Alison Gill]

Now, the Republicans also implied that Merrick Garland forced Jack Smith to speak to the Solicitor general about the D.C. case. But Smith rebutted that as well, and informed Jim Jordan and his staffers that he alone made the choice to meet with the Solicitor General because he wanted to discuss Trump's First Amendment rights, his First Amendment defense. That was inevitably going to come up. And we'll get to his testimony about the First Amendment later. But let's get back to debunking more of these Republican conspiracy theories. In this next clip, Jack Smith quickly dispenses with the right wing theory that he conspired against Trump with state attorneys general. Let's listen.

[Jim Jordan Staffer]

Did your office coordinate with state officials?

[Jack Smith]

What you mean interview state officials?

[Jim Jordan Staffer]

They'll coordinate, you know, several other, you know, state probes crop cropped up, you know, in Arizona, in Fulton County, Georgia. And I'm wondering how you coordinated those efforts.

[Jack Smith]

I, I know that we got inquiries from state authorities. I'm aware of that. My recollection is that we did not share any evidence with them. And I don't think my recollection is we did not get any evidence from them. We got it from. That is my recollection that it was all or part largely from public sources.

[Jim Jordan Staffer]

Okay. Was there somebody on your team who had responsibility for liaisoning with the Attorney General for the State of Arizona, Chris Mays?

[Jack Smith]

I don't believe so, but also the liaison? I don't think that. My recollection is that there was not like an ongoing discussion. What I was thinking of. I know we got a letter, for example, from the Attorney General in New Mexico asking for information from us. I don't have a specific recollection. As well as to other states, it may well be that we got other inquiries.

[Jim Jordan Staffer]

So there was no proactive coordination?

[Alison Gill]

No.

[Jim Jordan Staffer]

Okay. There was no proactive coordination. Regular communications with Chris Maze's office in Arizona?

[Jack Smith]

I don't recall any regular communications, but I. I'm hesitating just because I. I don't recall as I sit here, how many times they might have reached out to us or that sort of thing.

[Alison Gill]

Right.

[Jim Jordan Staffer]

How about with the Fulton County DA's office, with Fani Willis and.

[Interviewer/Committee Member]

And.

[Jim Jordan Staffer]

And Mr. Wade?

[Jack Smith]

Yeah. I've never had contact with either of those people, so.

[Jamie Raskin]

No.

[Alison Gill]

No coordination. I never spoke with those people. Don't know what you're talking about. Shut it down. Next, more collusion and coordination. Conspiracy theories, because they want to ask Jack Smith about his communications with the January 6th select committee. Now, here we learned something that I wasn't aware of. We learned that the committee actually waited until the very last minute. We knew they waited till the very last minute, but we didn't know that people went to actually get their information from them, from Jack Smith's team. That was another cause of delay in this case. It took months to get that information. But more importantly, Smith's answer shuts down the Republican theory that Democrats on the January 6th select committee deleted all their files to hide the truth. Because as Jack Smith testifies here, he actually handed over all of the January 6th Committee's work to Trump's team in discovery. So they had it watched.

[Jim Jordan Staffer]

What types of communications did you or your staff have with the January 6 committee?

[Jack Smith]

So when I was appointed a special.

[Jamie Raskin]

Counsel.

[Jack Smith]

I asked at some point whether we had gotten evidence from the special counsel, from these Select Committee. We had not. And so I directed my staff to get that evidence, get whatever evidence we could from them. And I think it was. I think it was in December or so that we did, in fact, get evidence from them and get a copy of their final report. And this is the. This is referenced in the. In our final report. There's a paragraph or footnote regarding that.

[Jim Jordan Staffer]

Do you know who at the Select Committee your staff was communicating with? Were you?

[Jack Smith]

I was not.

[Jim Jordan Staffer]

Okay, so you didn't have any communications with members or staff of the Select Committee?

[Jack Smith]

I did not know.

[Alison Gill]

Okay.

[Jim Jordan Staffer]

And who on your staff did what?

[Jack Smith]

I. Writer, what I recall is tasking JP Cooney to do this. I don't. I don't know if he then test somebody else or if he did it himself or with somebody else, but that's who I remember speaking to about this.

[Jim Jordan Staffer]

Okay.

[Alison Gill]

The.

[Jim Jordan Staffer]

The book we've been referring to reports that on January 1, less than 48 hours before Republicans could lock down all the evidence or perhaps deleted entirely. I don't think we would do that. A committee staffer summoned an attorney from Smith's team to Capitol Hill to receive a hard drive containing the committee's work. Is that consistent with your understanding of what happened?

[Jack Smith]

I. I wouldn't have remembered that level of detail if you hadn't read it. But we asked to get everything they would give us, and we took everything they gave us, and we disclosed to the defense everything we got.

[Jim Jordan Staffer]

Okay, you disclosed everything you received, stuff.

[Jack Smith]

We got from the January 6th committee. I directed my staff to disclose it to the defense.

[Jim Jordan Staffer]

And the book reports that, you know, Cooney drove to the Capitol and at the last minute succeeded in collecting two hard drives containing about 200 interview transcripts less than 24 hours before Republicans began shutting down the committee's website. Is that something you have, any recollection.

[Jack Smith]

Of, that level of specificity? I don't. I can't say that that's not accurate, but I don't recall that level of specificity.

[Jim Jordan Staffer]

And do you know if the, the hard drives that you obtained contained video of the interviews the January 6 committee conducted?

[Jack Smith]

As I sit here right now, I don't recall one way or the other. If, if they were in there, we, we looked at them and provided them to the defense, but I don't know one way or the other.

[Jim Jordan Staffer]

And when it comes to deleting documents, you know, while the Republicans didn't do that, what I can tell you is that the January six committee files, when we were able to have access to them, did not include the, the videos that they, that they recorded. And so the question is, you know, do you know, and I apologize if I'm repeating this, but do you know if the Special Counsel's office, you know, took. Act. Took possession of the videos of the interviews because we, we didn't get it. They were gone by the time we had access to it. Yeah.

[Jack Smith]

As I sit here now, I don't know. What I recall is give us everything you can, give us any evidence you can, and then we review that evidence and disclose it to the defense. What it included in terms of that level of specificity, I don't have that recollection right now.

[Jim Jordan Staffer]

The, the videos that they used at their, at the public hearings were obviously snippets and they were, you know, they were, they were cherry picked. I don't really mean that in a pejorative way, but they were, they were selected to make the points they wanted to make. And, you know, if, if there was a defense attorney involved with the proceeding, if there was a active minority involved with that proceeding, you know, we would have had a chance to point out that, you know, the videos are selectively edited and didn't have, you know, the full, the full context. And you would agree as a prosecutor that if there is a video, you'd want the whole video, not just the snippet.

[Jack Smith]

Yeah, we, we asked for everything they would give us, so we wanted whatever they were willing to give us.

[Jim Jordan Staffer]

Okay.

[Alison Gill]

All right. The next debunked right wing conspiracies are about election interference. As you know, Trump and Republicans claim that Jack Smith's investigation amounted to election interference, political retribution, and that's also part of their ridiculous criminal investigation into special counsel. He interfered in the elections, he didn't follow DOJ policy, and he interfered in the elections. Now here they're implying that the investigations into Trump moved too quickly and too aggressively and Jack Smith went rogue. And he did that to get them done before the election, when in fact, the election wasn't a consideration at all, but rather the speed necessary for the public's right to a speedy trial. Let's listen.

[Jim Jordan Staffer]

Getting back to the Robert Jackson statement that I read this morning, you know, he, he concludes that a sense of a sensitiveness to fair play and sportsmanship is perhaps the best protection against abuse of power. And the citizen safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth, not victims, who, who serves the law and not factional purposes, and who approaches his task with humility. Do you think in hindsight that, that you exhibited the, the kindness in dealing with President Trump that Robert Jackson evinces here?

[Jack Smith]

I think in our conducting both of these investigations, we did it consistent with the best traditions of the department and the principles that Justice Jackson was talking about there? So, yes, I do think in both cases, we adhere to those principles.

[Jim Jordan Staffer]

And is it also fair to say that you were in fact trying to get these cases Wrapped up before the election in 2024.

[Jack Smith]

We were trying to move these cases expeditiously. In our briefs, we cited to repeated Supreme Court precedent that states that the interest in a speedy trial, the right to a speedy trial, isn't just the defendant's right, it's the public's right as well. And given the gravity of these crimes in the public interest, it was our duty to move them forward as expeditiously as we thought, fair and reasonable.

[Jim Jordan Staffer]

So in hindsight, there's nothing about the aggressiveness of your schedule that you would have done differently.

[Jack Smith]

I thought the schedule was appropriate also.

[Alison Gill]

I don't know if you caught that. I can't believe they asked him if he thought he was too mean to Donald Trump. It's like, no, we followed the facts in the law. Now this next clip debunks the Republican theory that Jack Smith interfered in the election when he filed his 165 page immunity brief. This was his response to when the Supreme Court said the President enjoys immunity. He, he did a superseding indictment and filed 165 page immunity brief with all of his evidence. That was before the election. Andy and I read that brief in full on the Unjustified podcast. It's still available if you want to hear it. We did that when it was filed. And as it turns out, the government, Jack Smith actually didn't object to releasing the evidence after the election, but the court disagreed, so it wasn't his decision. Further, the Department of Justice policy about election interference, about not doing anything within 60 days of an election, first of all, it's just a policy, so he's not violating any law. But also that's about overt investigatory steps like executing search warrants or indicting someone not filing an ordered brief in an already indicted case. So check out this clip.

[Jim Jordan Staffer]

The 165 page brief that you filed at the beginning of October. Did you ever, was there any consideration of maybe filing it under seal at least until the election was over?

[Jack Smith]

Well, obviously you have to go to.

[Jim Jordan Staffer]

The court and all parties would have to agree. But certainly if all parties agreed, the judge would be amenable.

[Jack Smith]

I feel like this came up in the status conference that we had. I can't recall what I can recall though, now that you're reminding me, is there was an issue, and this is referenced in our final report where we filed our brief. They were given time to file their brief. They wanted more time which would put their brief after the election. We had our exhibits which were really the evidence. You know that we were citing that evidence. They made a motion for that, that should. That that evidence, the key facts should be filed under seal. And they, before filing their motion, usually the practice is to ask opposing counsel, what's your position about this? But they filed their motion before they could get our position. And so we contacted the court and we said that we had no objection to that evidence being filed under seal if the court agreed. Now, the court ultimately did not agree. And so this is referenced in a footnote in our report. I think that that is pretty direct evidence that we were not seeking to put the maximum amount of facts in the public record, that we were happy to have that be under seal. And even after the election, if that's what the court agreed.

[Jim Jordan Staffer]

Okay, but you could have sought permission to file that big brief under seal, right?

[Jack Smith]

I suppose we could have. And again, this is where my memory is escaping me. I feel like this issue was possibly discussed with the court. And I think the record of what any briefing on this or what the court said will be better than my memory about this.

[Alison Gill]

Okay.

[Jim Jordan Staffer]

Did you think it was important that that evidence be in the public realm before the election so, you know, people could make up their mind about. About who they were going to vote for?

[Jack Smith]

No, I did not see it as our role to provide evidence for people to make their voting decisions on. Yeah, if I, if I could just to the final report on page 107, footnote 258. On 17 October, Mr. Trump filed a motion to delay public disclosure of our appendix to the brief, meaning the actual evidence. Yeah, sure. It's 107. I'll let you get to it. 107. Footnote 258. They filed a motion to delay the appendix, meaning the evidence, until after he filed his own appendix, which would have been November 14th. Well, after the election.

[Jim Jordan Staffer]

Yeah.

[Jack Smith]

So that both appendices will be released simultaneously after the election. He filed that motion before obtaining our position. So we emailed the court's chambers copying defense informing the court that we did not object to that procedure.

[Alison Gill]

All right, everybody, I have tons more clips to share with you, but we need to take a quick break, so stick around. We'll be right back.

[Martin Sheen]

It's Sunday morning and that wonderfully relaxed feeling of a long, lazy day lingers in the air. If you want to make the moment last, may I suggest the perfect solution, The Martin Sheen Podcast. Join me, your host, Martin Sheen, for beautifully crafted 20 minute programs filled with never before heard stories of my life, along with personal reflections and poetry. That inspires. The Martin Sheen Podcast is the perfect Sunday refresh, a chance to take a deep breath, relax and know that the stress of Monday may be just around the corner, but not here, not now. So make this your weekly moment of calm as we explore faith, hope, love, and what it means to be human. And know this, this journey is ever unfolding as I invite you to see what's next with me, Martin Sheen. And thank you.

[Alison Gill]

All right, welcome back. Continuing with Jack Smith swiftly and succinctly refuting right wing conspiracies. There are so many of them and I wanted to go over what I thought were the most important ones. Let's look at a couple clips that deal with misinformation about the search executed at Mar? A Lago in the classified documents case. In this next exchange, Jack Smith defended Merrick Garland's decision to search Trump's residence. That was Merrick Garland's decision. And you'll hear at the end of the that they had just gone through the indictment, which they had. They spent a lot of time going through that whole indictment bit by bit because he couldn't talk outside of the indictment. And we'll get to the reasons why in a minute. But I'm leaving that out because we've gone over that indictment on this show and on many other shows with a fine tooth comb. We all know what's in that indictment. But watch this.

[Interviewer/Committee Member]

We're going to enter into the record two exhibits. I believe there'll be exhibits 14 and 15.

[Alison Gill]

Thank you.

[Interviewer/Committee Member]

Exhibit 13 will be a House Judiciary GOP tweet that says this is what happens in third world countries, not the United States. Doesn't the FBI have better things to do than harass the former president? And this Tweet is from August 8th of 2022. And then Exhibit 15 will be an August 8th, 2022 tweet from Speaker Kevin McCarthy that says, Attorney General Garland, preserve your documents and clear your calendar. What is your response to statements? And actually, I want to preface this by saying, look, I understand that you were not the special counsel when this search was conducted in August of 2022. But what is your response to statements made accusing the FBI of harassing Mr. Trump in the aftermath or after the FBI conducted as court authorized search of Mar? A Lago?

[Jack Smith]

I, I don't think those, those statements are accurate, do you?

[Interviewer/Committee Member]

You explain why you do not believe they're accurate.

[Jack Smith]

The, the search of the Mar A Lago social club was conducted pursuant to a warrant, a search warrant. As the Department of Justice and FBI does every day. Continues to do every day. It was approved by United States Magistrate.

[Martin Sheen]

And.

[Interviewer/Committee Member]

In your prosecutorial experience, can you describe what types of factors a prosecutor would have considered before seeking a court order to search someone's home or private residence?

[Jack Smith]

Well, most clearly, you would need to have a factual support for that basis and need reason to believe that evidence of a crime would be recovered and probable cause to believe it was recovered at the location you're asking to search based on the facts.

[Interviewer/Committee Member]

That's kind of. We just went through for the indictment of Derek's paragraph. We just went through the indictment, is that correct?

[Jack Smith]

That's correct.

[Alison Gill]

And do you remember when Trump and his allies tried to get the whole case tossed out because some documents had ended up out of numerical order in the boxes during transit? Now, Republicans asked about that. They harped on this for, for a very long time. And then they go on to imply that Jack Smith was stealing stuff that Trump wanted to put in his presidential library. Now, Smith's answer is pretty great here. And then the discussion turns into Republicans trying to allege that the documents were totally safe at Mar a Lago to be stored there. And then finally, whether Jack Smith tried to remove Judge Cannon. That's all in this clip. Check it out.

[Jim Jordan Staffer]

Do you know if he was intending to save those materials for his presidential library?

[Jack Smith]

You mean the classified documents, the items in the boxes?

[Jim Jordan Staffer]

All of them?

[Jack Smith]

Well, if he, if his defense were that he was intending to take classified documents that he had no authority to take, and he did it intentionally because he wanted to start a presidential library and keep those documents in the locations that we talked about today, that's a crime.

[Jim Jordan Staffer]

No, but my question was all the, all the items in the boxes, the shirts and the other mementos, were they being saved for a presidential library to the extent you were able to develop that in the course of your investigation?

[Jack Smith]

You know, I mean, there were newspaper clippings in there. There were, I think, you know, different sorts of things that I wouldn't, wouldn't to me, seem like the sort of things that would be in a presidential library. I, to be honest, I've never been to a presidential library, so. But if I were starting one, I don't think that's the sort of things I would put in it.

[Jim Jordan Staffer]

Okay, but you didn't develop any evidence during the course of your investigation that the materials were intended to, to be saved for presidential library?

[Jack Smith]

I don't recall that. And I also want to be careful of not getting outside the parameters of these filings, because I don't think we addressed that issue in the filings we're talking about.

[Alison Gill]

Okay.

[Jim Jordan Staffer]

And during the times relevant that we're discussing, Mar A Lago was protected by the Secret Service, is that correct?

[Jack Smith]

That's correct.

[Jim Jordan Staffer]

So to the extent of adversary want to come in and steal some of these classified documents, they would have had to go through the Secret Service to get them, right?

[Jack Smith]

Well, as we alleged in paragraph 13 of the indictment, the Secret Service provided protection services to Trump and his family after he left office, including at Mar A Lago, but it was not responsible for the protection of boxes of their contents. And the, the indictment states that Trump did not inform the Secret Service he was storing boxes of classified documents at Mar A Lago, meaning they didn't know that they were protecting classified documents.

[Jim Jordan Staffer]

But if Joe Hugh Citizen had classified documents from their time serving in government and they brought it home to their basement and some foreign adversary was aware of that, it would be much easier for a foreign adversary to break into the Joe Q. Public's basement and take those classified documents. If foreign adversary wanted to go and get those documents out of Mar A Lago would have been a lot more difficult. I mean, a person can't just walk into Mar A Lago and, and try to abscond with these materials. Right.

[Jack Smith]

I would very much like to answer that question, but I cannot answer that question due to the final report.

[Jim Jordan Staffer]

Was there an effort by your office, did you consider seeking the removal of Judge Cannon?

[Jack Smith]

Again, I don't think that's in any public filing. And so I cannot address that, given.

[Jim Jordan Staffer]

The, the injunction, whether, you know, the internal office discussions involve consideration of removing Judge Cannon. I mean, that's not something you can talk about.

[Jack Smith]

I don't think I can talk about things today. Again, consistent with our discussion this morning, if it's not in a public filing. I haven't seen the final report in almost a year. I'm not comfortable discussing issues like that because, solely because of that issue.

[Alison Gill]

Okay.

[Jack Smith]

I'm trying to be as consistent as I can about that.

[Jim Jordan Staffer]

Okay. The book by the Washington Post reporters that we were referencing earlier reported that you considered, and by you, I mean your office, your, your collectively, the collective. You considered petitioning the removal of Judge Cannon, but the Solicitor General's office recommended against it because. And, and if you had gone to the Attorney General, that would have had to been reported to, publicly reported, reported to Congress. Is that something you have a recollection of? Mr. Sorry, I just, on, on this point.

[Jack Smith]

I just want to make sure that.

[Jim Jordan Staffer]

We'Re in agreement that the Department of Justice has taken an expansive interpretation of Judge Cannon's order in its application to Mr. Smith and that he's not permitted to disclose non public information that may.

[Interviewer/Committee Member]

Be contained in volume two of the special counsel's report.

[Jim Jordan Staffer]

And I know you cited this book, but the email that we both received from the Department of Justice this morning.

[Jack Smith]

Said that this prohibition.

[Interviewer/Committee Member]

Does not apply to information that has been made publicly available through authorized means.

[Jim Jordan Staffer]

And so if something was leaked to some reporters who wrote a book about it, I would not consider that to.

[Interviewer/Committee Member]

Be made publicly available through authorized means.

[Alison Gill]

Now, up next, I have a series of exchanges about the Republican theory that Jack Smith had weaponized his office to go after Donald Trump. And Republicans, listen to this exchange about why Smith only charged Trump and no one else in the January 6th case.

[Jim Jordan Staffer]

Why didn't you charge any of those?

[Jack Smith]

I'm sorry?

[Jim Jordan Staffer]

Why didn't you charge any of those, those coconspirators?

[Jack Smith]

As we stated in the, in the final report, we analyzed the evidence against different co conspirators. We, my staff, determined that we did have evidence to charge people at a certain point in time. I had not made final determinations about that at the time that President Trump won reelection, meaning that our office was going to be closed down.

[Alison Gill]

So, yeah, Republicans sitting there trying to say, oh, you only went after Trump, that's because you were focused on Trump and you wanted to interfere in the elections and it was political and you went rogue. That's one of, that's part of their whole theory here. And he just completely set that aside very calmly, very succinctly and said, no, I was considering indicting others. We then had an election. But Trump was the central reason for this whole thing. So that's who I was investigating. There was so much evidence. I love it. At the end, he's like, there was so much evidence against Trump. We had to streamline the case because we had so much evidence. And then here's a great clip where Representative Jasmine Crockett helps Jack Smith rebut the weaponization theories by exposing the actual weaponization of Trump's Justice Department Watch. The majority was asking you about why it is that you characterize your belief that there was guilt as it relates.

[Jamie Raskin]

To the indictment that you sought. As a trained prosecutor, typically, are you.

[Alison Gill]

Supposed to go after people that you.

[Jack Smith]

Don'T believe are actually guilty? There's a couple of negatives.

[Alison Gill]

I know they were trying.

[Jack Smith]

You're not supposed to go after people who you believe are not guilty.

[Alison Gill]

Okay, thank you.

[Jamie Raskin]

In your Experience of three decades.

[Alison Gill]

Have you ever needed to seek the same indictment three times while being rejected?

[Jack Smith]

Never.

[Alison Gill]

Now, this next one is pretty great. A Jordan staffer tries to shoehorn in some old Republican election conspiracy theories about Pennsylvania, and Jack Smith just drops the hammer in his own subtle but devastating way.

[Jim Jordan Staffer]

Mr. Jordan wanted me to point out that there was a discussion earlier, I think it was with Congresswoman Scanlon talking about the Pennsylvania election. And you, I think you use the term that, you know, in the normal course of, of things, the, you know, things that happened in Pennsylvania. Am I jogging your memory with this?

[Jack Smith]

I, I know we spoke about that. There was another series of questions about this. So I do remember that.

[Jim Jordan Staffer]

Yeah. Okay. And we just wanted to point out for the record that, I mean, there was nothing normal about what happened in Pennsylvania during the, you know, the, the 2020 election. I mean, the, you know, the state legislature, who ordinarily is responsible for making, you know, the election law, picking the time, place and manner and prescribing the blow by blows in an election, was, you know, basically usurped by the Pennsylvania Supreme Court. And they changed all sorts of things in, in the 2020 election. You know, for example, they said that the election, instead of ending on ordinarily, would end on Tuesday. Election day was going to end on a Friday.

[Alison Gill]

The.

[Jim Jordan Staffer]

The Supreme Court said that where, where signature verification was ordinarily required. That was, that was the Pennsylvania state legislatures. Yeah. That's how the statute set up, you know, in terms of administering elections. And the Supreme Court changed that and said that, you know, signature verification wasn't required. You know, the volume of absentee ballots was completely different than an ordinary election. There were over 2 million, you know, absentee ballots. And so, you know, we just wanted to point out, and I guess ask you the question, were you aware of all these irregularities and disparities because of the, you know, because of the COVID and so forth? So many things had changed by the time it got to election day in Pennsylvania.

[Jack Smith]

Well, what I can say is that some of the issues you raised are the sort of issues that a campaign or someone who's a candidate can raise in the courts. And I believe a lot of these issues were raised in the courts. I think Donald Trump lost those litigations.

[Alison Gill]

All right, I've got two more clips of Jack Smith shutting down conspiracy theories. This one is a big conspiracy theory, and it really is hampering the current Justice Department's pursuit of the alleged pipe bomber. That January 6th was actually an inside job. It was carried out by the Feds, which Trump was in control of at the time. So this is a weird conspiracy theory, but that it was carried out by the feds, the deep state within the FBI. And you can kind of hear how pained this questioner is asking knowing, ridiculous questions of this very serious man. Watch.

[Jim Jordan Staffer]

Were you, during the pendency of the investigation, were you aware that at the Capitol on January 6, FBI had confidential human sources?

[Jack Smith]

I'm sure I probably was. I think there was public reporting on that.

[Jim Jordan Staffer]

But did you. Did you know that also as a part of your. As part of your work?

[Jack Smith]

I'm sure, yeah.

[Alison Gill]

Okay.

[Jim Jordan Staffer]

And do you know how many there were?

[Jack Smith]

As I sit here now, I can't recall. I know there was an Office of Inspector General report about this, that there were no undercover officers there, as had been reported, but there were informants there, some who had gone on their own.

[Jim Jordan Staffer]

And did your office oppose President Trump's discovery request for information relating to the confidential human sources?

[Jack Smith]

I would have to look at our filings on that.

[Jim Jordan Staffer]

Okay. As we understand it, your office did oppose that and said any such information is not relevant to the charge, conduct or as a valid defense in the case. And so, consequently, you were not in favor of that. Does that ring any professional recollection at all?

[Jack Smith]

I'm not disputing what you're saying. I haven't read the filing. What I. What I recall is there was also a database of evidence from January 6 that the D.C. u.S. Attorney's office would give access to defendants who were involved in those cases, and we gave President Trump and his attorneys access to that. I'm not sure they ever accessed it, but. Okay, I do recall that. And there may have been a filing like you talked about.

[Alison Gill]

Okay. And finally, this clip refers to the conspiracy theory that Trump tried to use to discredit the entire classified documents investigation when they alleged that Jay Bratt had threatened Walt Nada's attorney, Stanley Woodward, by insinuating that they would shut down his application for a judgeship if he didn't get his witness, Walt Nada, to cooperate with the government? That is all explained here perfectly.

[Jim Jordan Staffer]

Do you think it was inappropriate for Mr. Brat to make a suggestion to Mr. Woodward that, you know, he ought to. He ought to cooperate, and if he does cooperate, if Mr. Muada chooses to cooperate, that. That, you know, the implication was that his. His application to be, you know, a judge will be looked on more favorably by the Democrats at the Justice Department?

[Jack Smith]

I don't think that happened, but I'm happy to share with you my perspective on It. Okay, so let me just say one.

[Jim Jordan Staffer]

Thing, if I may.

[Jack Smith]

Sure.

[Jim Jordan Staffer]

You know, these judges for the District of Columbia, I mean, the Justice Department weighs in on it. Is that not the case? I mean, the White. The White House Counsel's office, you know, works to, to, to come up with the names they're gonna, they're gonna submit for nomination. But the way the procedure works is the Justice Department, you know, does the vetting.

[Jack Smith]

I don't think I knew that until this issue came up, which I'm again happy to explain. So with the District of Columbia particularly. Okay, so very short time before this matter of days, this is right around the time we had given notice that we intended to move forward with an indictment in the classified documents case of both Mr. Trump, President Trump, and Mr. Nada. As was my practice in cases like this, we gave Mr. Trump's attorneys an opportunity to come in and give me arguments as to why not to indict the case. And in the course of my life, I've heard those arguments and sometimes not move forward on cases in this particular situation because my decision would ultimately be reviewed by the Attorney General, who could countermand it. That meeting was with. With me and Bradley Weisheimer, who was in the Justice Department. Mr. Trump's attorneys were there. It was Jim, Trustee, Lindsey Halligan, and there was a third attorney who I can't remember, but I'm sure there's a record who that was. They gave reasons why they thought the case shouldn't be indicted. And for the first time, this is my recollection, they raised this issue that somehow J. Brad has had threatened Stanley Woodard. Now, I was surprised by this because we had interacted. I hadn't. But my counsel had interacted with Mr. Woodard numerous times over my time as special counsel. He not only represented Walt Nada, he represented other witnesses on, on the classified documents case. He represented, I, I believe, multiple people in the elections case. And so all this time passing, this has never been raised before. I went back to my office. That meeting was at the Main Justice Building. I went back to my office and very short. Shortly afterwards, I informed my deputy, JP Cooney, about this and Ray Holzer about this. They contacted Mr. Woodard to ask him about this. I believe there are notes about that, notes of either JP Cooney or Ray Hulser. I'm not, I'm not sure my recollection of that, and again, they would remember this better, is that Mr. Woodard expressed surprise that anybody had raised this, and he said something to the effect of, well, I know how to, to make a complaint if I want to take that for what you will. That was the initial response. What day was this? Yeah, generally like early June. So like the, before the meeting on with the attorneys was in the days before we ultimately went forward with the case. And I'm not sure how late this letter was after this, this when I came back to the office. Mr. I tasked Mr. Cooney and Mr. Holzer to speak to the people who were present for this meeting. None of them believed that Jay bratt would threaten Mr. Woodard. It didn't make a lot of sense that a career prosecutor would, in the first meeting with the counsel they never met, threaten them. One of the things they asked about was this issue about the judicial nominating thing. And Mr. Brat explained that he had not met Mr. Woodard before and not had a case with him. So he had looked him up. And when you pull up information about Mr. Woodard at the time, there's a page that comes up and we attached this in one of our motions. It says, stanley Water, Judicial Nominating Commission. That page makes it look like he is on, at least if you look at it quickly, on the Judicial Nominating Commission, not that he has a candidacy. Mr. Brat explained to us that he was under the impression that Mr. Woodard was on the commission and raised it as a sort of like icebreaker, like, I understand you're on this Commission. Now, whether Mr. Woodard misunderstood that or some other reason here, he says he drew an inference that he was making some sort of threat. That didn't make a lot of sense to me, given all the interactions he'd had with our office. I think Mr. Woodard later started talking about a campaign against him, but he had meetings with people in my office repeatedly in positive ways. And finally, I also thought it was noteworthy that Mr. Woodard didn't bring up this issue for many months. And then the first time that he brings it up in this letter, he's doing it to seek strategic advantage because he didn't report it to opr, didn't want it reported to opr, never asked that. And now he wants it not only reported to opr, but he actually wants to delay the indictment of the case until that's concluded. I will say that when we confronted, I say we, my, my Deputy spoke to Mr. Bratt about this. He self reported it to OPR, which is pretty standard in these sort of situations. And so, and I would also just say this was some time ago. We did a filing on this that I believe is public. And that filing will reflect my best recollection of these things. And so I did not credit these allegations, but we made sure they were referred to opr.

[Alison Gill]

So Woodward never complained about it until things went south. Brat thought Woodward was on the nominating commission because like me, I mean, who on earth would believe Stanley Woodward was up for a judicial nomination? So he thought he was on the nominating commission, was like, oh, very cool, used it as an icebreaker. And Jay Bratt self reported to OPR afterwards. So case closed, by the way, they grilled him on this for like 20 minutes. And he just stone faced was like, no, that's not how it was. That's not what happened. All right, everybody, we'll be back with testimony. The Republicans spent the most time on that. You know, their phone records, that their, their phone records were subpoenaed. They're very mad about this. And we'll talk about this after this break. Stick around. We'll be right.

[Jack Smith]

Foreign.

[Martin Sheen]

And that wonderfully relaxed feeling of a long, lazy day lingers in the air. If you want to make the moment last, may I suggest the perfect solution, The Martin Sheen Podcast. Join me, your host, Martin Sheen, for beautifully crafted 20 minute programs filled with never before heard stories of my life, along with personal reflections and poetry that inspires. The Martin Sheen Podcast is the perfect Sunday refresh. A chance to take a deep breath, relax, and know that the stress of Monday may be just around the corner, but not here, not now. So make this your weekly moment of calm as we explore faith, hope, love, and what it means to be human. And know this, this journey is ever unfolding as I invite you to see what's next with me, Martin Sheen. And thank you.

[Alison Gill]

All right, everybody, welcome back. There's nothing like our elected members of Congress providing important oversight for themselves. The number one grievance from Republicans in the behind closed doors interview of Jack Smith wasn't anything that impacts the American people or government generally. They're mad that Jack Smith got their phone records and not even the content, just the toll records so they could see when calls were placed and to whom. And I'm not going to bore you with the dozens and dozens of pages of whining Republicans whining about these toll records. But I do have a couple of clips that I thought were important that I wanted to share that illustrate how Jack Smith handled these questions. Here's a clip that includes Jack Smith using Jim Jordan himself as an example.

[Jim Jordan Staffer]

After you became the special counsel, that information obtained from the subpoena, you know, was available to the special counsel team. What did the team do with it after you became, you know, after you were sworn in?

[Jack Smith]

You mean when you say that information, you're talking about the total record subpoena.

[Jim Jordan Staffer]

For the Chairman of the Committee?

[Jack Smith]

Well, I can tell you that, for example, there were, there was contact on, for example, January 6th. That. Again, another example for you is Mark Meadows. When he interviewed, when we interviewed him, he referenced the fact that that afternoon Chairman Jordan had been in contact with the White House. And like Congressman McCarthy's contact with the White House, it was relevant because. And again, Meadows stated this, that these were supporters, these were credible people that the President relied on. And I, what I recall was Meadows stating that I've never seen Jim Jordan scared of anything. And the fact that we were in this different situation now where people were scared really made it clear that what was going on at the Capitol could not be mistaken for anything than what it was. And it goes back to that sort of information from someone who is a credible source to the President proving that that actually happened and that there's actually a record of that call and exactly when it happened and what actions happened after that or didn't happen after that. Extremely probative to our case.

[Martin Sheen]

Right.

[Jim Jordan Staffer]

But DOJ took Mr. Jordan's phone records from January 2020 through November through January of the subsequent. I mean, what, what on earth could, could the Justice Department want with, with his phone records before time's relevant?

[Jack Smith]

Sure. And the, the breadth of that subpoena was before I was Special Counsel Office, and I wasn't involved in the deliberations about seeking that subpoena or the breadth of it. And so I can't speak to that.

[Jim Jordan Staffer]

Okay.

[Alison Gill]

I mean, anyone else remember Jim Jordan on TV being asked if he spoke to the President on January 6th? I talk to the President all the time. I don't even know what you're talking about. Maybe. I don't know. I talk to him all the time. I talk to him all the time. I talk to the President. I'm a Congressman. It's not weird. I. Oh, my gosh. It was, it was hard to watch. But there it is, laid out for you by Jack Smith. Now, here's some related questioning about who should be held accountable for the terrible, terrible crime of subpoenaing members of Congress. According to the law, you have to watch this.

[Jim Jordan Staffer]

You know, to the extent the members of Congress and senators are up in arms that this happened to them and they're seeking accountability, you know, who should be held accountable for, for answering these Questions?

[Jack Smith]

Well, I think who should be accountable for this? Is Donald Trump. These records are our people. In the case of the senators, Donald Trump directed his co conspirators to call these people to further delay the proceedings. He chose to do that. If Donald Trump had chosen to call a number of Democratic senators, we would have got toll records for a number of Democratic senators. So responsibility for why these records, why we collected them, that's, that lies with Donald Trump.

[Alison Gill]

Donald Trump, Donald Trump should be held responsible. He chose them. He called them or he asked Meadows to tell Epstein to tell Meadows to call them. He did. He chose those people, not Jack Smith. So maybe don't get on the phone and do crimes if you don't like it when you're, when your toll records are subpoenaed and when Jim Jordan is tired of being embarrassed, he sends in his staffers. This happens a lot. Either that or he just doesn't think it's that important. And Jack Smith explains again why the toll records are legal and necessary, this time using Kevin McCarthy as an example.

[Jim Jordan Staffer]

But do you know what, what happens with the records once they get them?

[Jack Smith]

The analysis, like how they do the analysis, what do you do with the records? That, that would not be in my area of expertise. How the analysis is actually conducted.

[Jim Jordan Staffer]

How does that get rolled back into the team?

[Jack Smith]

What do you mean?

[Jim Jordan Staffer]

The team's work, the prosecutor's work. So you, you subpoenaed Speaker McCarthy's co records after he became Speaker. You sought records from November 2020 through January 8, 2021. But what were you looking for with his records? Like what, what did you do with the information you obtained?

[Jack Smith]

Okay, so what the relevance of those records, there'd be several examples, but his contacts with either co conspirators, the President, or conduits of information to the President was relevant to our investigation. And an example I could give you is on January 6th we had information from Mark Meadows who was present for a call where Congressman McCarthy was asking for help. He was asking the President to come to his aid while the, the Capitol was being seized. Getting the exact toll records for when that happened was relevant for our investigation, both to question other witnesses about, so we had an accurate timeline and also to corroborate that the call happened at approximately the time witnesses said it it happened.

[Jim Jordan Staffer]

But it's pretty significant to subpoena the speaker of the House's toll records. Right?

[Jack Smith]

We followed department policy and we followed all legal requirements in getting those records.

[Jim Jordan Staffer]

You know, to get the information you're looking for. Nobody disputed the speaker and the president were having communications on, on January 6th. So one way you could have gotten that information is you could have asked the speaker's lawyer to look at his phone records and to give you the information you needed. Right.

[Jack Smith]

Well, you say now that nobody is disputing, but my experience in criminal investigations is that people, people often at trial, dispute things that you never thought were going to be in dispute during the investigation. And so when I conduct a criminal investigation, I don't assume there will be no disputes. Having a record that is a hard record about a time in the timeline that afternoon was particularly important because that violence started, the president refused to stop it, he endangered the life of his vice president. And he's getting calls, and not just not calls from, from Democrats, not calls from people he doesn't know, calls from people he trusts, call from people he relies on and still refuses to come to the aid of the people at the Capitol. That's very important evidence for criminal intent in our case.

[Jim Jordan Staffer]

Right, but you could have asked Elliot Burke for that information. The speaker said lawyer, you could have asked Elliot Burke to say, can you get us the Speaker's, you know, phone records for this time? And he probably would have said, of course, avoiding a toll record subpoena.

[Jack Smith]

And your question, why didn't you do that? We got these records in a manner that was consistent with the law and consistent with department policy. There was nothing improper about how we got these records.

[Alison Gill]

All right, next, I'd like to share a few exchanges about Jack Smith's strategies, both for the investigations themselves and some things that he had planned for trial and how to bring witnesses and which witnesses to bring. Here's an exchange with Jamie Raskin about why Jack Smith charged Trump with Title 18, US Code, Section 241, Conspiracy Against Rights. A lot of folks were expecting him to be charged with inciting an insurrection or sedition. But Jack Smith went with Section 241, and he explains why.

[Jack Smith]

I served on the January 6th select committee. And we spent a lot of time looking through the criminal statutes that may.

[Jim Jordan Staffer]

Have been implicated in the attack on.

[Jack Smith]

The peaceful transfer of power, the attempt.

[Jim Jordan Staffer]

To overthrow the election, and then the.

[Jack Smith]

Violent assault on the Capitol. And we in our conclusions cited a number of statutes which ended up, I think, being part of your investigation, including conspiracy to obstruct a federal proceeding, conspiracy to defraud the United States, false statements, and so on. But you added something which I think was very interesting, which was a conspiracy to violate voting rights, which is something that we hadn't done And I wonder if you would take a moment to expound on why you thought you had sufficient evidence to prove beyond a reasonable.

[Jim Jordan Staffer]

Doubt that there was a conspiracy to.

[Jack Smith]

Violate the voting rights of the people. Sure. The right to vote in a presidential election is one of the most sacred rights that American has. Americans have. And in this particular case, we had strong evidence that the defendants in this case sought to interfere with, obstruct, injure that right. We had evidence in just a couple examples where President Trump was asking local officials to find 11,000 votes. When you find 11,000 votes, you're diluting other people's votes. We had evidence that they were targeting certain states and particularly certain parts of certain states, generally urban parts of states, to have those votes thrown out with no factual basis whatsoever. I believe we cited this in our final report. But there's even statements of the coconspirators in this case, at least one I'm coming to mind now. You know, specifically saying we want to get rid of these votes, we want to subtract them, and diluting the vote count in that way. There's strong precedent for, for that being a violation of the statute that we charged.

[Alison Gill]

Now, next up is a fascinating exchange. This one really stood out to me as one of the more important exchanges in this testimony, because I constantly asked myself throughout the entirety of the Trump being here in politics, actually not just the entirety of the investigation, but since he rolled down that golden escalator, I always wondered if they believe their own lies. Now, this clip starts with questions about which members of Congress Trump interacted with. And it ends with us learning that neither Rudy Giuliani nor Trump himself believed their own election lies and that Jack Smith had proof of that. Check this out.

[Interviewer/Committee Member]

So let's dig down a little bit in that. Let's start on January 6th. So I believe in the evening, did your investigation uncover or learn that Mr. Trump personally called members of Congress on the evening of January 6th?

[Jack Smith]

Yes.

[Interviewer/Committee Member]

Do you remember who those members were?

[Jack Smith]

I'd have to look at the records to be sure. But the best of my recollection, he was trying to get in touch directly himself with Senator Holley and Senator Haggerty. And then there were several senators who he directed Rudy Giuliani to get in touch with.

[Interviewer/Committee Member]

And who were Those senators that Mr. Trump directed Mr. Giuliani to get in contact with? To the best of your recollection?

[Jack Smith]

To the best of my recollection. And this comes from a email or I think it was a text maybe, that Boris Epstein sent to Mark Meadows and it basically said something to the effect of the President told the mayor to call these senators and they needed numbers. And what our. What our investigation ultimately showed was they. They sent that text after they'd already started trying to call members and didn't think they had, and ended up understanding that they didn't have the right phone numbers. In fact, the message that they left for Senator Lee, which he voluntarily provided to our office, that was meant for Senator Tuberville, I believe, and the message that he left for Senator Sullivan, I believe it was, was for Senator. The name's escaping me now. But it was another senator that he meant to call. We had also interviewed Boris Epstein before these subpoenas were issued. He corroborated that they were, in fact, trying to call senators. He dissembled and tried to imply that the President hadn't directed him to do it, even though there was a text message saying specifically that they had. But he agreed that they tried to call these senators and that they had certain senators numbers themselves, and so they didn't need those numbers. And that would be. I believe it was Senator Cruz and possibly. I think he said they possibly tried to call Senator Graham as well.

[Interviewer/Committee Member]

I want to touch on a point, because it seems like the evidence you uncovered showed certain members of Congress, including Republicans, pushing back on this assertion about the big lie. And I'm characterizing some of these claims about the election as the big lie. Is that, is that okay if I, if I use that term?

[Jack Smith]

You can use whatever.

[Interviewer/Committee Member]

I'm going to use the big lie. So do you. Do you recall any evidence when you were talking to Mr. Giuliani that he truly believed all the voter fraud claims that he was putting out around the country?

[Jack Smith]

Our evidence was he did not. And in fact, when we interviewed him, he disavowed a number of the claims. He claimed they were mistakes or hyperbole. Even the claim about Ruby Freeman, where he, you know, basically destroyed this poor woman's life by claiming she was a vote scammer. President Trump did the same thing in a recorded call with the Secretary of State. He disavowed things he'd said in that interview.

[Alison Gill]

All right, next up is Rep. Zoe Lofgren, who gets to the bottom of why Roger Stone and Steve Bannon weren't charged. I had thought they should be immunized. I thought they should be questioned. But Jack Smith explains why he didn't go down that road. We attempted in the January 6 committee.

[Jim Jordan Staffer]

To.

[Alison Gill]

Question Peter Navarro as well as.

[Jim Jordan Staffer]

Steve Bannon, and they were both prosecuted.

[Jack Smith]

And spent Time in jail, Roger Stone.

[Jim Jordan Staffer]

Appeared, but took the fifth.

[Alison Gill]

Were you able to provide to get information from any of those three individuals in the case of Mr. Stone, provide use immunity so that he would have to testify?

[Jack Smith]

We did not. Why not? We pursued the investigative routes that we thought were the most fruitful. We pursued those that we thought were necessary to get a complete understanding of the scope of the conspiracy. And given the highly uncooperative nature of the individuals you talked about, I didn't think it would be fruitful to try to question them. And the sort of information that they could provide us, in my view, wasn't worth immunizing them for their own possible conduct.

[Alison Gill]

Next, Jack Smith lists some of Trump's knowingly false claims of election fraud. We know most of these from the indictment, if you read the indictments and the court filings. But it's something else to hear Jack Smith lay them out one after the other off the top of his head. His command of the facts are unimpeachable. Watch.

[Interviewer/Committee Member]

So I want to start with how that level of distrust was created. In your report, you say, and this is a quote, the through line of all Mr. Trump's criminal efforts was deceit, knowingly false claims of fraud. Can you generally describe some of these knowingly false claims of fraud that were spread after the 2020 election?

[Jack Smith]

Sure, there's a number of them. And, and you know, part of the explanation is, is why they're false. And so, you know, just off the top of my head, an example is there was, he was on notice in this election that in Pennsylvania, for example, that he would be ahead in the vote count for a period of time and then when the mail in ballots were counted, his lead would dissipate. He chose to represent that phenomena that he'd been briefed on that was normal course of an election, that all sides knew that that's how it was going to be. He chose to present that as evidence of fraud and to people who are not maybe as informed as him or informed as his campaign managers who told him these things. That's the sort of thing that creates distrust. There were fraud claims in, you know, Michigan, Georgia, where he was specifically disabused by people he trusted, by political allies, by the people when he chose to call them, who are best situated to know. In Georgia, I'm thinking of the Secretary of State, he reflexively rejected those things and continued to state false things after he'd been told that repeat repeatedly that they weren't true.

[Interviewer/Committee Member]

And why was it important? Probably goes to the mindset but why was it important, important of all of these repeat statements from individuals that his, that Donald Trump's claims were untrue? How did that play into your overall investigative findings?

[Jack Smith]

Well, I think that the pattern and the depth of the pattern and the length of the pattern was pretty damning evidence that he knew these things were false. He only brought fraud claims that involved states that he lost. He only approached people generally who had party allegiance to him. When he was told that a fraud claim wasn't true, he didn't stop making it. Another example I can give is that Sydney Powell, who's alleged as one of the co conspirators, was part of his, his team at the beginning of this conspiracy. Shortly after, she began making statements that really nobody could credit that were facially false. And at some point, Giuliani made a statement that she wasn't on the legal team anymore. And Trump at one point was on a call, President Trump, where he, he basically, if I recollect it right, he muted the call and said she was, was crazy. But then after that point, he continued to promote her fraud claims and lawsuits. He considered putting her as a special counsel, even though he'd admitted, you know, he used the word crazy and the statement she was making could by any reasonable person be viewed as true. And so I think that sort of like claims that were so outlandish and so just fantastic, continuing to push those sort of claims after they've been disabused with strong evidence of our, of our case.

[Alison Gill]

So Jack Smith had evidence that Trump knew and understood the Red Mirage, especially in Pennsylvania. Do you remember that the red Mirage, meaning the initial vote, would look very red and then that would be chipped away slowly and his lead would dissipate as more mail in votes were counted. And Jack Smith had evidence that Trump knew about that. He knew about the Red Mirage, but claimed it was fraud anyhow and used that to break the law. So that's not part of your First Amendment rights. And we'll talk more about that later. He knew he was lying about election fraud. So the next logical question is whether Trump knew he actually lost the election. And I have to say, just another stellar example of Jack Smith's command of details and his recall watch.

[Interviewer/Committee Member]

Did President Trump ever acknowledge that he KN that he had actually lost the election of President Biden?

[Jack Smith]

Yeah. So this paragraph references different statements that he made in the presence of other people. One is that it doesn't matter if you won or lost the election, you still fight like hell. And then the other was, can you believe I lost to this effing guy. So, referring to Joe Biden.

[Interviewer/Committee Member]

So if this would have gone to a trial and using your years of experience being a prosecutor and trial attorney, how would you have argued this admission, Mr. Trump? Or how could you. What's the way you could have argued this admission for Mr. Trump to a jury?

[Jack Smith]

Well, I think I saw these admissions as corroborative of the larger case. We would have presented what I viewed as very strong witnesses from each state to explain how the elections occurred in that state and why the events, the outcomes were trustworthy. And debunking various fraud claims that President Trump made, we would present. We would have presented the false claims that he made repeatedly, interspersed with debunkings to him or other evidence that showed they weren't true and that, that they, that evidence got to him. This, this sort of evidence would corroborate that, but it would sort of be the, the cherry on top, if you will. The, the evidence that I felt was most powerful was the evidence that came from people in his own party who, as I said earlier, put country before party and were willing to tell the truth to him, even though it could mean trouble for them. I think witnesses like that, in my experience, would be very powerful witnesses in front of a jury. And this sort of evidence that you're pointing to here would be extra. But I think those other evidence, those other witnesses would be very strong proof.

[Alison Gill]

All right, next up, we have Jack Smith thoughts on whether the Supreme Court's immunity ruling exonerated Trump. That's something else that a lot of right wing influencers claimed as soon as the Supreme Court granted him immunity, that it somehow exonerated him from these crimes. But Smith shuts that down as well.

[Jack Smith]

Smith, do you believe that the Supreme Court's decision on executive immunity constitutes an exoneration of President Trump's conduct in the months and weeks leading up to January 16th. January.

[Alison Gill]

No.

[Jack Smith]

Would you just explain that for us why you don't see that as an exoneration for what he did?

[Alison Gill]

Sure.

[Jack Smith]

I, I understand the Supreme Court decision. If I just go back for a second, this was an issue we litigated in the District Court. District court agreed with us. We litigated it in the Court of Appeals. Court of Appeals agreed with us. We litigated in the Supreme Court. Supreme Court majority did not agree with us. They took a view of executive power that was more expansive than what we argued. I disagreed with it for the reasons we set forth in our brief and the reasons stated by the dissent in the case, Justice Sotomayor, but it is the law of the land. And what my office sought to do and responding to that was to follow the law and see do we still have a case. And I think the, the evidence that we had after that decision remained powerful.

[Alison Gill]

All right, and let's end this block with Smith's thoughts on Trump pardoning the insurrectionists and why he thinks that's that is in contravention to the rule of law.

[Interviewer/Committee Member]

Watch I believe you're your report talks about the writers, the crowd that violently attacked the law enforcement officers attempting to secure the building. On page 25 of your report, one of those rioters was Daniel Rodriguez, who multiple times plunged a stun gun into the neck of Officer Michael Fanone, causing Officer Fanon to suffer a heart attack and sustain other injuries. Mr. Rodriguez was subsequently sentenced to 12 years in prison after a federal judge called him a quote, one man army of hate. Are you aware of President Trump pardoning Mr. Daniel Rodriguez?

[Jack Smith]

I am, I not him specifically, but my understanding is he pardoned all the people who violently assaulted police officers that day.

[Interviewer/Committee Member]

So in pardoning all the people who assaulted police officers that day, another example is a Mr. Patrick Mulcahy III who used a stolen police riot to police riot shield to crush Officer Daniel Hodges in a metal door frame at the entrance of the lower West Terrace Tunnel. And he left Officer Hodges trapped, bleeding, even crying for help from his fellow officers. Officer Hodges testified, and this is a quote, if, if I was there much longer being assaulted in such a way, I knew that there was very likely I wouldn't be able to maintain my consciousness. Judge Trevor McFadden described Mr. McKay as a, quote, poster child of all that was dangerous and appalling about January 6, stating that his actions were, quote, some of the most egregious crimes ever committed that day, end quote. Mr. McKay was sentenced to more than seven years in prison. Are you aware that Mr. McKay was one of those rioters who assaulted law enforcement on January 6 that were pardoned by President Donald Trump?

[Jack Smith]

Again, I don't know his specific name, but I know people like him who did things like he did.

[Jim Jordan Staffer]

Were.

[Interviewer/Committee Member]

And are you aware of the more than 140 police officers who were injured by the pro Trump mob on January 6, sustaining injuries such as cracked ribs, traumatic brain injuries, smashed spinal discs and heart attacks as rioters used bats, flag poles, chemical sprays, stolen police shields and batons to beat officers? Are you aware of those facts from that day?

[Jack Smith]

Very much so.

[Interviewer/Committee Member]

Do you believe that pardoning individuals like this who committed crimes against law enforcement that day makes our country safer.

[Jack Smith]

It does not. My view.

[Interviewer/Committee Member]

Can you explain why, from your prosecutorial experience prosecuting gangs, prosecuting violent crimes, why pardoning individuals who committed violence on January 6th doesn't make our country safer?

[Jack Smith]

Well, I don't think it's really my opinion. I think we've already seen some of the people who are pardoned go on to commit other serious crimes. And I don't have much doubt that in the coming months and years, we'll see more of that. People who would otherwise be incarcerated, communities protected from them. They're going to be. They're outing communities. And my, my view is that we will continue, unfortunately, to see people who are pardoned for committing violence on January 6th continuing to commit additional crimes. That's my view. You know, I. I just, I don't understand why you would pardon people who assaulted law enforcement. I think it sends lots of messages. One of the messages is to law enforcement. The people who defended the Capitol that day, in my view, are heroes. And I think pardoning people who assaulted them is wrong.

[Alison Gill]

All right, everyone, I have a few more clips to share. Thanks for hanging in. Stick around. We'll be right back. All right, everybody, welcome back. You may have noticed there's not a lot of testimony about the classified documents case, and there's a reason for that. Judge Cannon, Judge Eileen Cannon still has a standing order blocking the release of volume two of Jack Smith's final report. She set it to expire February 24th. The 11th Circuit set it to expire just this Friday, January 2nd. So we're keeping an eye on that. But he addressed that multiple times during the hearing, and here's how he answered an early question about it before I.

[Interviewer/Committee Member]

Turn over to Mr. J. Paul. Are you able to speak about volume two today?

[Jack Smith]

I'm not.

[Interviewer/Committee Member]

Can you explain what you can and cannot speak about respect to volume two?

[Jack Smith]

Well, there is an order of Judge Cannon and injunction regarding volume two. I want to make very clear that I do not want to do anything to violate that injunction of that order. And so given that I have not seen looked at volume two since I submitted it to the attorney general almost a year ago, I do not have a exact recollection of what is in there and not. And so unless something is in a public filing or. And people can point me to a public filing or in, I think the category that was mentioned in the letter that we got this morning of publicly, I can't remember the terminology, but properly publicly released information, I do not want to I want to be clear. I do not want to violate that order, and I don't want to do anything that could even be remotely construed as violating that order.

[Jamie Raskin]

Wait, so I'm sorry, but DOJ did not let you review volume two of your report?

[Jack Smith]

They, it may well have been there, but I chose not to review it because I didn't want any implication whatsoever that I was somehow violating the order by looking at it not being a member of the department now.

[Alison Gill]

And then Dan Goldman asks about volume two, but in the context of Trump yanking Jack Smith's security clearance, which Smith says is actually quite normal when you leave government. But the security clearance of his attorneys will come up in a later clip. But watch this.

[Jack Smith]

Can I go back to volume two.

[Jim Jordan Staffer]

Just for a second?

[Jack Smith]

You said that they, that the department gave you access to volume two and you chose not to use it. That's correct. I believe so. I, I, I did not, given the injunction, want to look at that. And so I believe it was there, but I, I, I was looking at other things. I didn't look at that. Did they give you access to any classified information that was a part of your files? No, it was, did you, did you or your attorneys have any discussions with the department about that? I, I don't recall. Do you still have your security clearance? No. When and how was that taken away? I, I think in the normal course of things, when you leave government service, you sign papers basically saying you don't have your secret security clearance anymore. That's, I, it's vague, but that's my recollection of what happened at my conclusion of my service. Do you know if your attorneys requested for you to have temporary security clearance so you could review your own files? I, I don't believe we did. And because you didn't look at the volume two that they provided to you, you don't know whether or not classified material was provided to you in that, in that volume. Again, I don't want to speak about anything that could infer the content of volume two.

[Alison Gill]

And of course, don't forget, Kash Patel comes up in volume two. That's why a lot of senators, at least on the Democratic side, wanted to get volume two while considering and providing advice and consent when Kash Patel was nominated to be the FBI director, because he's in volume two. So he's asked about that and he comes up with, he comes up in the, Kash Patel comes up in this exchange. So watch how Jack Smith handles this.

[Interviewer/Committee Member]

In the last hour with the minority, Mr. Smith you talked. We asked you about folks that were interviewed during the course of your January 6th investigation. I think we talked about Mr. Giuliani. We mentioned Mr. Meadows, we mentioned Vice President Pence. An individual that I failed to ask about was whether you interviewed you, Director Cash Patel, as part of your investigation with Special Counsel's office.

[Jack Smith]

I can't get into that because of the Judge Cannon's injunction.

[Interviewer/Committee Member]

Okay. Did Director Patel testify before the grand jury as part of your investigation?

[Jack Smith]

Same answer.

[Interviewer/Committee Member]

You mind saying that just for the record?

[Jack Smith]

To make it the record, I cannot answer that question due to Judge Cannon's injection.

[Interviewer/Committee Member]

And did Director Patel assert his right against self incrimination as part of your investigation?

[Jack Smith]

Can't answer that question.

[Interviewer/Committee Member]

In general, just using your years of experience as a prosecutor, are you aware of any prohibitions that would prevent Mr. Patel. Director Patel, from disclosing his own testimony if he did testify with the Special Counsel's office?

[Jack Smith]

Just as a general matter, not specific to anything with this case. My understanding is the witnesses can disclose their own testimony.

[Alison Gill]

It.

[Interviewer/Committee Member]

Thank you.

[Alison Gill]

All right, next we have a couple of questions about why this testimony happened behind closed doors and not publicly. Because there was a public back and forth with letters between Jim Jordan and Jack Smith's attorneys. So here's an exchange with Jared Moskowitz. Watch this.

[Jack Smith]

Did you see the comments by the.

[Jim Jordan Staffer]

President'S chief staff talking about retribution?

[Jack Smith]

I did.

[Jim Jordan Staffer]

So everyone was fired. You're here on a deposition. Your lawyers lost their security clearance. Seems like it meets not only the.

[Jack Smith]

Definition in Webster, it seems like this.

[Jim Jordan Staffer]

Is exactly what Trump's Chief of staff is talking about.

[Jack Smith]

No, I have no doubt that the President wants to seek retribution against me. I have no doubt that that's the intent.

[Jim Jordan Staffer]

Yeah.

[Jack Smith]

The exact point was he doesn't wake up thinking about it, but when there's.

[Jim Jordan Staffer]

An opportunity, he goes for it. I mean, this seems like a opportunity. You think the White House gave instructions to Chairman Jordan to set this deposition.

[Jack Smith]

So I am eyes wide open that this president will seek retribution against me if he can. I. I know that I don't, frankly, connect that with this hearing. I don't have any connection. I came here, I was asked to think.

[Jim Jordan Staffer]

There were zero conversations between the White House and Chairman Jordan.

[Jack Smith]

I don't know. But I'm here in good faith, and I was asked to come testify.

[Alison Gill]

So it's interesting that this took place behind closed doors. Jim Jordan denied it. I think we can tell by the content of the interview and the release in that, the fact that they released it in the evening on New Year's Eve that Jim Jordan was very glad that he didn't interview Jack Smith in public. And here's Congresswoman Jayapal asking about whether Smith would still be willing to testify publicly at some point in the future. And why were you willing to appear voluntarily in public?

[Jack Smith]

We conducted our investigation in a way that I'm proud of. I'm particularly proud of the people I conducted the investigation with. And I wanted to speak for them.

[Jamie Raskin]

And is it generally the practice of.

[Jack Smith]

Special counselors to appear in a public hearing? I know you have a couple of.

[Jamie Raskin]

Questions on this, but I want to reiterate this.

[Jack Smith]

That is my general understanding.

[Jim Jordan Staffer]

Yes.

[Alison Gill]

And can you tell us again why the amer. I understand you want to stick up for the prosecutors, the people that were part of the investigation.

[Jamie Raskin]

Can you tell us why some important.

[Alison Gill]

For the American people to hear directly.

[Jamie Raskin]

From you about your investigations, what you discovered, the process?

[Jack Smith]

Well, as I said in the beginning of I think in my opening remarks, there have been mischaracterizations about my work. The we did our work in the best traditions of the department. And I know I keep coming back to this, but the attacks that the mischaracterizations that most offend me are not just prosecutors, they're career FBI agents, support staff in the department. These are people who devoted their lives to public servants, to being public servants. They have not. They're not self promoters. They're not people who like to go in front of the cameras and defend themselves. And I feel that they have been vilified in a way that I think is awful.

[Jamie Raskin]

What's the effect of that on their democracy?

[Jack Smith]

Well, I think it drives people away from public service.

[Martin Sheen]

Yeah.

[Jamie Raskin]

Is it a form of witness intimidation?

[Jack Smith]

I think it's even deeper than that. I think, you know, when we get to attacking the people who are the.

[Alison Gill]

Good guys.

[Jack Smith]

I just don't know where that goes. I counter to how I was raised.

[Jamie Raskin]

And let me ask you, even after.

[Alison Gill]

This deposition today, are you still willing to appeal here at a public hearing before this committee and speak directly to.

[Jamie Raskin]

The American people about your investigation?

[Alison Gill]

Yes. Notice he's Jack Smith is very adamant. This came up over and over again in his testimony. He's very adamant about standing up for the people, the career prosecutors and agents at the FBI and people who worked at the DOJ and prosecutors on his team, all of the people on his staff that worked for him. He's very, very keen on defending them and their honor. That is quite a difference from people like Kash Patel and Dan Bongino. Who never mention their employees ever. They are just like, it's been the honor of a lifetime to work for Trump. Bye. You know, because Dan Bongino's leaving. But they never mention them, they never stick up for them. And Jack Smith is making sure to do that in this testimony. Like I said, it happened quite a bit now, earlier I said we'd get into the First Amendment arguments. And although Jack Smith laid all this out in detail in the indictments and won litigation in briefings over the fact that the First Amendment doesn't cover fraud and its well established precedent up to and including the Supreme Court, Republicans still can't get the hang of how the First Amendment works. Here is a Republican staffer trying to, first of all normalize what Trump did on January 6th and Jack Smith refuting it soundly.

[Jim Jordan Staffer]

The President's statements that he believed the election was rife with fraud. Those certainly are statements that are protected by the First Amendment, correct?

[Jack Smith]

Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity. No, they're not.

[Jim Jordan Staffer]

That.

[Jack Smith]

That was my point about fraud not being protected by the First Amendment.

[Jim Jordan Staffer]

I mean, there's a long list of disputed elections, I mean, the election of 1800, 1960 year, 2000, where candidates believe they were wronged by the, you know, because they lost. And there's a long history of candidates speaking out about they believe there's been fraud. There's been other, other, you know, problems with the integrity of the election process. And I think you would agree that those types of statements are sort of at the core of the First Amendment rights of a, of a presidential candidate. Right.

[Jack Smith]

There is no historical analog for what President Trump did in this case. As we said in the indictment, he was free to say that he thought he won the election. He was even free to say falsely that he won the election. But what he was not free to do was violate federal law and use knowing, knowingly false statements about election fraud to target a lawful government function that he was not allowed to do. And that differentiates this case from any, any past.

[Alison Gill]

Now, here's Jack Smith again discussing the very clear carve out for fraud, which, you know, again, citing case law off the top of his head. And he compares that with what Trump did. He compares what Trump did on January 6th to affinity fraud. He likes it. To affinity fraud. This is a very good, succinct argument. If there's anybody in your life who doesn't quite understand how fraud isn't covered by the First Amendment, this is A great clip to play for them.

[Interviewer/Committee Member]

Can you help? Now bring us full circle on how you analyze the First Amendment claims with the knowledge of the fraud that Mr. Trump was putting out the American public in 2020 and 2021.

[Jack Smith]

Sure. From a legal perspective, this is really quite clear. I think all of us want to make sure people's First Amendment rights are not abridged in a way that they shouldn't be. I think I certainly feel that way. I'm sure everybody in this room feels that way. But there is a very clear carve out for fraud in our case law, Supreme Court. I think there's one case is the Stevens case talks about that and, and there are others. And so when you're committing a fraud, meaning you're not just saying something that's untrue, you're saying it knowing it's untrue or with reckless disregard for the truth, that's not, that's not protected by the First Amendment. People commit crimes all the time using words. And when someone commits a fraud, an investment fraud, or someone commits with an affinity fraud, where you try to gain someone's trust, get them to trust you as a general matter, and then you rip them off, you defraud them, that's all words. But it's not protected by the First Amendment. And in a lot of ways, this case was an affinity fraud. The President had people who he had built up, who had built up trust in him, including people in his own party, and he preyed on that. Some people wouldn't do it, others would. We're lucky that enough wouldn't that the election was upheld.

[Alison Gill]

All right, and to wrap it up today, I wanted to point out some exchanges about the threats that Jack Smith faces and his staff and his team and his lawyers, and the retribution that he's facing. He's facing a criminal investigation into his investigations. And these lines of questioning are important in the face of the onslaught of Republican questioning that happened over the past eight hours of testimony implying that Jack Smith is the one weaponizing the Justice Department. And here in this clip, Jamie Raskin asked Jack Smith about the removal of career professionals by the Trump administration.

[Jack Smith]

Have you made any statements or are.

[Jim Jordan Staffer]

You willing to make any statements on.

[Jack Smith]

The firing and removal of Department of Justice prosecutors who worked on January 6, on people at the FBI who were involved in the FBI investigation, or on the president's mass summary pardon of 1600 January 6th insurrectionists and other people involved? Yeah, I think what has happened to career prosecutors and career FBI agents is awful. It's contrary to the rule of law. It's contrary to I, who I think we are as a country. One of the agents on our case, he. He served his country overseas multiple times, war zones, family of dedicated public servants, wife's family, dedicated public servants. He got fired for doing his job two weeks after his wife died. I went to the funeral. I saw his family. I saw a church full of public servants. No reason a person like that should have to go through that. And I'm getting emotional. I'm sorry about that, but I just think that's wrong.

[Alison Gill]

And in this next exchange, he lays out Trump's weaponization and retribution against Jack smith pretty succinctly.

[Jamie Raskin]

Mr. Smith, you spoke earlier today about threats and attacks against made by Donald Trump against witnesses, prosecutors, judges who had challenged him, including threats against yourself. Do you remember that?

[Jack Smith]

Yes.

[Jamie Raskin]

So did President Trump target you personally in post Truth Social?

[Jack Smith]

Yes.

[Jamie Raskin]

Are you aware, for example, that he called you a, quote, deranged lunatic, unquote, quote, Trump hater, unquote, and quote, psycho?

[Jack Smith]

Yes.

[Jamie Raskin]

Do you recall that on October 15 this year, President Trump speaking to reporters standing next to the Attorney General and the deputy Attorney general, said, quote, deranged Jack Smith, in my opinion, is a criminal. Then he also talked about investigating Lisa Monaco, Andrew Wiseman, and Adam Schiff, saying, quote, I hope they're looking at all these people and I'm allowed to find out. I'm, in theory, the chief law enforcement officer.

[Jack Smith]

Yes, I'm aware of that.

[Jamie Raskin]

And are you aware that President Trump posted on truth social on October 29th of this year that, quote, these thugs should all be investigated and put in prison? A disgrace to humanity. Deranged Jack Smith is a criminal. Four with three exclamation marks.

[Jack Smith]

That may be. I. I know there were several posts like this.

[Jamie Raskin]

Okay. Do you think those were a direction, potential direction, to the Department of Justice to retaliate against you because of your role as special counsel in the investigation of him?

[Jack Smith]

Yes.

[Jamie Raskin]

You are joined by your counsel today from coming from Covington and Burley, is that right?

[Jack Smith]

Yes.

[Jamie Raskin]

And did President Trump or the White House take any actions against your attorneys because due to their relationship with you?

[Jack Smith]

Yes.

[Jamie Raskin]

And what action did they take?

[Jack Smith]

They filed an executive order against the law firm and sought to withdraw the security clearances of my attorney.

[Jamie Raskin]

I'm just going to offer this as Exhibit 20, and this is exactly what you just talked about. So Exhibit 20 is an executive order issued by. I know the White House on February 25, 2025, and it is entitled suspension of security clearances and Evaluation of government contracts. And I just want to read into the record that this Executive Order says, I hereby direct the Attorney General and all other relevant heads of executive departments and agencies to immediately take steps consistent with applicable law to suspend any active security clearances held by Peter Koski and all members, partners and employees of Covington and Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel, pending a review and determination of their roles and responsibilities, if any, in the weaponization of the judicial process. And the Executive Order also directs the Attorney General and heads of agencies to take such action as are necessary to terminate any engagement of Covington & Burling LLP by any agency to the maximum extent permitted by law and consistent with a memorandum that shall be issued by the Director of the Office of Management and Budget. Did I read that.

[Jack Smith]

Correctly?

[Jamie Raskin]

Yes. To your knowledge, is this Executive Order still in.

[Jack Smith]

Effect? I believe it.

[Jamie Raskin]

Is. What do you think was his purpose for issuing this Executive.

[Jack Smith]

Order? To seek retribution against.

[Jamie Raskin]

Me. Is it also to. To harm your relationship with your attorney and to make it more difficult for lawyer to represent.

[Jack Smith]

You? I think it's to chill people from having an association with.

[Jim Jordan Staffer]

Me. I just want to say, for.

[Interviewer/Committee Member]

The record, we're still here proud to represent Jack.

[Alison Gill]

Smith. And I figured we'd end the show on my favorite moment. I think that this tiny little piece of testimony spoke volumes, and it. And it came pretty early on in the testimony, too. And I think it sort of set the tone for how the rest of the testimony would go. Like I said, despite the numerous conspiracy theories that Republicans have about Jack Smith's investigation and what really happened, you know, what they say really happened on January 6th. They seemed reticent to continue to parrot those ridiculous talking points in the face of Jack Smith because of his demeanor and the things that he was saying, his succinct answers, his recall of law and case citations. So I think that even though I want to end on this clip, even though I came early, early on in his testimony, but I think it's. I think it's just a really good way. I think it's just a really good way to end this particular set of clips. Let's watch. And just to kind of finish.

[Jamie Raskin]

Up on this point, you yourself, I'm.

[Alison Gill]

Not sure if this was discussed by the majority, but have you yourself been intimidated as a result of the actions that you in this.

[Jack Smith]

Case? I'm not going to be.

[Alison Gill]

Intimidated. I will not be intimidated. So good. All right. There was some testimony I didn't include with Jim Jordan trying desperately for a gotcha moment, questioning Jack Smith about how he got his job. He said he was offered the job and that's how he got it, but that he did have a conversation with a friend of his when Smith was still at the Hague. He called a friend of his because, you know, he had heard that his friend had gotten a job at the Justice Department coming back out from private service. And so he called his friend to congratulate him. And during that conversation, Smith testified that his friend asked him if he'd ever return to Main justice because he was at the Hague at the time prosecuting war crimes. And Jack Smith told the committee and told Jim Jordan that he told his friend that if the job was right, if he got the right offer, that he would come back to the Department of Justice. And so it's actually my hope that in January of 2029 that someone calls Jack Smith from the President Elect's transition team and offers him the job of Attorney General of the United States. Now, some may say he's too entrenched in politics because he investigated Donald Trump to be considered, but I think this testimony demonstrates his apolitical nature, his command of the facts and his details are astounding. His time at the Hague prosecuting war crimes is more than relevant. And his willingness to follow the facts and the law without fear or favor, I think make him an excellent candidate for the job. And I think it might be a job that he's willing to do. Also. His willingness to speak out, I think, is important. I think we were missing that in the Merrick Garland Department of Justice. There was just a lot of silence. So I'd like to think he would consider Attorney General as the right job for him to return to Main justice. Again. There were a lot of policies that he had to follow as special counsel, and I could tell he didn't always agree with them, but he was bound by them nonetheless. And I think he would have no problem reforming them. And I think we're going to need a reformer in that job come 2029. Just my two cents. Thank you all so much for watching and listening to this special episode of Unjustified in partnership with the Midas Touch Network. Andy McCabe will be back next week. I'm Al. We'll see you then. Unjustified is written and executive produced by Alison Gill, with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey, with art and web design by Joelle Reader at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds, and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. For more information, please visit.