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Jack Smith: "I Stand By My Decisions" To Charge Trump; Smith: Trump Was "Looking For Ways To Stay In Power"; Ex-Trump Prosecutor Testifies For First Time On Probes; Smith: Trump Part Of "Criminal Scheme" To Overturn 2020 Election. Aired 12-12:30p ET

Aired January 22, 2026 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[12:00:00]

JACK SMITH, FORMER SPECIAL COUNSEL: I think my report -- the report of our case to final report, summarizes the evidence, I think, in a way that is gives a fair reading of the strength of the case.

REP. STEVE COHEN (D-TN): And you have no question but have been successful before jury.

SMITH: My review of the case, I came to the conclusion, we had proof beyond a reasonable doubt. We were ready, willing and able to go to trial in the case. Of course, as I said in my opening statement, prosecutors can't control outcomes, but I felt confident in pursuing the case to trial.

COHEN: Did Merrick Garland ever pressure you to bring it -- to bring an indictment, or to do anything in your investigation?

SMITH: No.

COHEN: Did anybody else the administration, President Biden, Vice President Harris, et cetera?

SMITH: I was given the independence to conduct my investigation, and I came to the decision to bring charges in this case without undue influence from anybody in the department.

COHEN: And you dropped the case. Why did you drop the case?

SMITH: The cases against Donald Trump were dismissed pursuant to department policy.

COHEN: Department policy Office of Legal Counsel said, if he's somebody's president, you can't bring a charge against them, or they can't be held liable. Is that correct?

SMITH: That's correct. There had not been a case of this nature ever where someone was elected president with charges pending, and so that was slightly different. So, we consulted with public -- sorry, with the Office of Legal Counsel, and they determined, pursuant to policy, that the cases needed to be dismissed.

COHEN: And you weren't pleased with that, but you had to follow the law, and guess what you did?

SMITH: We followed policy throughout my investigation. My job was not to set policy. My job was to follow it, and that's what we did.

COHEN: I want to thank you for your service. I think you're a great American, and you came out of this as being somebody who people can respect and look up to in a fashion that we should be instilling people's desire to go into justice, to go into law and to go into government. And you're an example of the type of person they should follow. I yield back the balance.

UNIDENTIFIED MALE: Gentleman yields back. The gentleman from Wisconsin is recognized.

REP. SCOTT FITZGERALD (R-WI): Mr. Smith, there's something that's really bothering me since your deposition. It's how and why you got the position of Special Counsel and your personal relationship with Marshall Miller. Let's go back to 1999 when you were working for the United States attorney's office for the Eastern District of New York. Is that when you first met Marshall Miller?

SMITH: Yes.

FITZGERALD: So, after ED New York, did the two of you ever work together again prior to becoming Special Counsel? According to the public bios for you and Mr. Miller, you overlapped at DOJ from 2014, '15, when you were chief of DOJ is Public Integrity Section, and Mr. Miller with chief of staff for DOJ's Criminal Division. Is that accurate?

SMITH: I believe that is accurate. Yes.

FITZGERALD: OK. So, were the two of you social outside of work?

SMITH: I would say intermittently, yes.

FITZGERALD: OK. But after 20 years of knowing each other, it's safe to say you were friends, correct?

SMITH: Yes.

FITZGERALD: OK. So, let's fast-forward to 2022. Mr. Miller is appointed principal Associate Deputy Attorney General at DOJ. The number three at DOJ. You call your friend, and congratulate him, and according to the deposition transcript, you say you'd be interested in a position at DOJ. Is that correct?

SMITH: Yes. What I recall is that I expressed an interest. If the right position came up, I would be interested in considering.

FITZGERALD: But at that point, there's no discussion about special counsel, is that correct?

SMITH: This is some time ago, and so, I don't have a specific recollection of all these conversations. FITZGERALD: So, you were first approached about special counsel and that role before the '22 midterm elections. And according to the deposition transcript, in October of 2022 you fly to D.C., meet with the AG and the deputy attorney general. Is that correct?

SMITH: Yes, I flew to D.C. I believe it was in October, and I met the deputy attorney general, and also, I met the attorney general.

FITZGERALD: So, in multiple conversations with your friend Marshall Miller, he never once tipped you off that the attorney general or deputy attorney general. Have you in on the short list for special counsel that never came up?

SMITH: Again, this was some time ago, but my recollection is, I came to Washington, and I met with those individuals, as well as the human rights section. Marshall Miller is the person who set that up.

FITZGERALD: So, he was at the meetings. Was he at the meetings? So, just to tie all this together. You've known Mr. Miller since you were both a U.S.A. in New York. You stayed in touch over 20-year career in federal government. He gets a job with the Biden administration. Just a few short months later, you're offered the role of special counsel.

[12:05:00]

I'm having a hard time believing that this is some big coincidence and that there wasn't a back and forth on the special counsel. So, maybe you never received directives explicitly from the AG or the deputy attorney general. But was Marshall Miller, did he become a two-way conduit throughout the investigation with DOJ?

SMITH: No, and I would not take direction from a political person, a political figure, about how I should conduct an investigation.

FITZGERALD: But you never spoke to him throughout the entire time you were conducting an investigation?

SMITH: No, I didn't say that. What I said was that he was -- I think you asked if he was a conduit of information. He was present, to my recollection, at meetings, briefings that I had with the attorney general and deputy attorney general during my time as special counsel.

FITZGERALD: I mean, I don't want to assume anything, but Mr. Miller wanted you in that position, not because you're necessarily the best lawyer he ever met, but because of the long-term friendship that you have with him.

SMITH: What I can tell you is, I have been a prosecutor for 30 years. I have been an apolitical public servant for 30 years. I've prosecuted cases against Democrats and Republicans all the same. I've had, in my view, the experience necessary for this position, and that's why I accepted it.

FITZGERALD: So, he knew that you would pursue, I mean, he had to have an idea that you would pursue exactly what the Biden administration wanted, which was criminal charges against President Trump?

SMITH: I think that anybody who knows me well knows the idea that I would take direction from a political figure about how an investigation should come out. I don't think anybody who knows me thinks that's true.

FITZGERALD: Well, Chairman Jordan, I think the next deposition should be with Marshall Miller. At this point. I yield back.

UNIDENTIFIED MALE: Gentleman yields back. The gentleman from Georgia is recognized.

REP. HANK JOHNSON (D-GA): And while we are deposing Marshall Miller, maybe we can depose Donald Trump about why he chose his personal lawyer to be the head of the DOJ. On January 6, 2026, the fifth anniversary of the insurrection, the White House launched a taxpayer funded website that attempts to rewrite history about what happened on that day of infamy.

On January 6, 2021, there was an insurrection at the United States Capitol that resulted in a police officer dying the next day, another four officers dying by suicide in the months thereafter, with at least 140 police officers being injured by the insurrectionists, with 15 of them requiring hospitalization. And I'm proud that we have four former officers as well as on duty Capitol Hill police officers here today.

Mr. Smith, I want to ask you about this website, because the Trump administration is using taxpayer dollars to lie to the American people about the events leading up to and the events taking place on January 6, 2021. For example, this Trump propaganda site claims that the 2020 election was, quote, stolen. Mr. Smith, did your investigation uncover evidence sufficient to prove beyond a reasonable doubt that Donald Trump knew that his claim that the election was stolen was false.

SMITH: Yes, it did.

JOHNSON: And did your investigation uncover evidence sufficient to prove beyond a reasonable doubt that Donald Trump publicly claimed that the 2020 election was stolen from him, while he privately acknowledged that he had lost the election.

SMITH: Yes. We cited instances of that during our -- in our case.

JOHNSON: But yet, here we see that on the fifth anniversary of the insurrection, the Trump White House propaganda machine is still promoting the stolen election theory on this government web page with a text box titled, "fraudulent election, stolen election certified". The site also has a subsection reading in part, quote, FBI entrapment operation exposed. Mr. Smith, did your investigation develop any evidence to support the allegation that the FBI entrapped insurrectionists into committing crimes on January 6?

[12:10:00]

SMITH: Our investigation revealed that Donald Trump is the person who caused January 6, that it was foreseeable to him and that he sought to exploit the violence.

JOHNSON: This website also accuses you of being a quote, Biden prosecutor who brought, quote, weaponized charges against Mr. Trump. Mr. Smith, were you a Biden prosecutor who weaponized the Department of Justice against Donald Trump?

SMITH: Absolutely not.

JOHNSON: Did Attorney General Merrick Garland direct you to prosecute Trump because Donald Trump was running against Joe Biden in the presidential election?

SMITH: No.

JOHNSON: There are also allegations that President Trump was the victim of, quote, lawfare, and accusations that the Department of Justice lawyers who prosecuted Donald Trump used, quote, fabricated indictments and rigged show trials. Did you, Mr. Smith, or the men and women working on your team work to fabricate indictments or put on rigged show trials?

SMITH: No. We secured indictments from grand juries, and we were prepared to prove our case in court beyond a reasonable doubt.

JOHNSON: Did you use your appointment as special counsel to conduct a politically motivated witch hunt scam investigation and prosecution of Donald Trump?

SMITH: I did not. We followed the facts, and we followed the law. Where that led us was to an indictment of an unprecedented criminal scheme to block the peaceful transfer of power.

JOHNSON: And those indictments have been dismissed. Can they be re- brought or resurrected after this -- after Trump leaves office?

SMITH: They were dismissed without prejudice.

JOHNSON: So, they can be refiled, and he can be prosecuted after he leaves office. Is that correct?

SMITH: I'm not going to speak to that. I can only speak to what we did, which was dismiss the case without prejudice.

JOHNSON: All right. The website put out by the Trump White House on the anniversary of January 6, is nothing more than a pack of lies. It proves that Donald Trump is hell bent on misusing taxpayer dollars in a feeble attempt to rewrite his criminal history and the history of what happened on January 6, 2021.

And with that, I yield back, but I would like to Mr. Chairman offer for the record --

UNIDENTIFIED MALE: Unanimous consent?

JOHNSON: -- unanimous consent, a statement from cybersecurity and infrastructure security agency released on November 12, 2020, that states, the November 3, election was the most secure in American and also testimony from -- I would like to request unanimous consent to enter into the record the September 24, 2020, testimony of Trump's former FBI director Chris Wray, who told Senate Homeland Security -- excuse me, the Homeland Security Committee of the Senate, that the FBI had, quote, not seen or historically had any kind of coordinated national voter fraud in a major election objection.

UNIDENTIFIED MALE: I objection.

JOHNSON: And last, but not least, Mr. Chairman, I'd like to ask unanimous consent into the record. This article titled disputing Trump bar says no widespread election fraud.

UNIDENTIFIED MALE: Without objection. Gentleman yields back. The gentleman from Texas is recognized for five minutes.

REP. LANCE GOODEN (R-TX): Thank you, Mr. Chairman. Mr. Smith, on November 18, 2022, A.G. Garland appointed you as special counsel. Can you tell me about your swearing in, or the oath of office that you took after that?

SMITH: I don't recall the specifics of it. I know I was sworn in. I don't recall the specifics of how that was done.

GOODEN: You don't remember who swore you in?

SMITH: I don't.

GOODEN: Would you agree that taking the oath of office is a legal requirement for the job that you had?

SMITH: I have taken oath of office regularly. I haven't researched whether it's required or not, but I have done that. I think in every government case --

GOODEN: It is required. Terms I heard earlier today were atypical, irregular, no proper procedure. Yet, in your opening statement, you said that we followed justice department policies, and I would assume you meant the law as well. It strikes me as odd that you don't remember who swore you in, how you were sworn in. It's pretty significant. We all get sworn in here, and I remember every day. You don't remember who swore you in.

SMITH: I don't remember the details of it as I sit here today --

GOODEN: But you did take the oath of office before you got rolling.

[12:15:00]

SMITH: I think my recollection is it was when I was appointed.

GOODEN: It was when. It strikes me as odd that Attorney General Garland, had you read take the oath of office on the 14 of September of the following year. Why did he make you do that?

SMITH: As I sit here right now, I do not recall. I know that there is the oath of office that I signed. I believe it was on the 18, the day that I was appointed. And I know the department had me do a second one. I don't know the particulars of why they asked me to do it again, but I know --

GOODEN: You signed it on the 20 of November -- 22 November 2022, but there was no witness, which I mean, you have to agree. It's a little odd. If there's no witness saying that you took the oath of office, it would maybe make someone like me question whether or not you were legitimately doing the job until you finally took the oath of office.

It sounds like the attorney general had the same question and thought, oh, shit, we got to have him sign this on the 14 day of September of the following year. So, why did you take the oath of office again on the 14 of September of the following year? When you say you took the office in November of 2022, why do you need to do it twice?

SMITH: My recollection is that I took the oath of office, as you said, it was the 18 of the 20, and felt I was under the oath of office. I believe, if you have in front of you, I think I signed an oath.

GOODEN: If you signed it, but there was no witness. There was supposed to be either notarized or a witness, and apparently, Attorney General Garland thought it was significant enough to have you do another oath 11 months later. That's strange, right?

SMITH: I don't know why they asked me to sign it again. I don't recall ever discussing this issue with Attorney General Garland.

GOODEN: Well, that is just wild to me. I'd like to yield the balance of my time to Mr. Jordan.

(AUDIO BLIP)

REP. JIM JORDAN (R-OH): Which one counted? I think that's what the gentleman is asking.

SMITH: I understood myself to have taken the oath of office when I assumed the job --

JORDAN: How much money did you -- OK, how much money did you spend in the investigating President Trump? How much one's your office been?

SMITH: I do not recall as I sit here now, but I know that pursuant to -- I believe it's the special counsel regulations, reports were issued each six months detailing how much --

JORDAN: We gathered at $35 million and what I want to know is, how much of that $35 million of taxpayer money did you give to confidential human sources? We know you gave 20,000 to someone. It just got reported last week. How much more money did you pay confidential people, people we don't know about with American tax money going after the guy we elect the president.

SMITH: My recollection regards the $20,000 which was not a payment from me. It was me approving a payment by the FBI to a confidential human source who was reviewing video and photographic -- JORDAN: But who is source?

SMITH: I do not know the identity of the source.

JORDAN: How many other payments went to this source or other sources?

SMITH: As I sit here, I do not know the answer to that question. My role as special counsel --

JORDAN: $35 million and you're giving money to people, the country doesn't know who they are and you've given their hard-earned money these folks? The main question I have, too with this is, why'd you have to do it? You subpoenaed bank records from the RNC, phone records from members of Congress. You got subpoenas for bank records for people sitting right down the front row. Why did you have to pay people for information -- and get it?

UNIDENTIFIED FEMALE: Time is expired.

JORDAN: Time is expired, you can answer the question, though, country like no, why you had to do it?

SMITH: My recollection and understanding is the payment, the $20,000 that I approved was for a confidential human source to assist in the review of video and photographic evidence, showing people who were attacking the Capitol, attacking police officers, obstructing the proceeding, and seeing if we could prove that some of those people had come directly.

JORDAN: It wasn't my question, but my time has expired. The gentleman from California is recognized.

REP. ERIC SWALWELL (D-CA): Mr. Smith, I want you to have the utmost confidence in what you did. You did everything right? Harry Dunn, Danny Hodges, Sergeant Gonell, Mike Fanone, they did everything right. These guys, my Republican colleagues are a joke. They're wrong. History will harshly judge them, so I want you to lean in today.

[12:20:00]

You have nothing to be ashamed of. You did everything right, sir. And I am so -- these guys are so lucky, they're not under oath, because they would have to tell you what they really think of Trump. They call him crooked. They call him cruel. They call him a scumbag. I've heard you all say it. You're lucky. You're not under Trump. But when the lights go on and the cameras are on, you're tiny. You're small. You shrink.

Everyone remembers Matt Gaetz coming over here after a committee hearing. He would laugh at how stupid he thought Trump was. This is all a show. And Mr. Smith, you're just the latest act that they've brought in. But they can't erase what happened on January 6, because we saw it with our own eyes. Mr. Smith, after the mainstream media called the race for Biden, about a week after the election, did Donald Trump concede the election?

SMITH: He did not.

SWALWELL: The next month, the electoral college met in every state and voted Biden is the winner. Did Donald Trump concede then?

SMITH: He did not.

SWALWELL: Shortly after that, the last court case that Donald Trump brought was thrown out. Did he concede then?

SMITH: No.

SWALWELL: Is it your judgment then that only Donald Trump could have convened the mob in the size that it was assembled on January 6.

SMITH: Our assessment of the evidence is that he is the person most responsible for what happened on January 6. He caused what happened. It was foreseeable to him, and then when it happened, he tried to exploit it in furtherance of the conspiracy.

SWALWELL: And you actually obtained indictments from a grand jury, right? You went to a grand jury and did something that the Trump administration has not been able to do is they go after their enemies. Their cases are being thrown out. You obtained criminal indictments against the president. Is that right?

SMITH: That's correct.

SWALWELL: Mr. Smith, do you know who Edward Loya is?

SMITH: I'm sorry.

SWALWELL: Edward Loya, L, O, Y, A.

SMITH: I believe Mr. Loya worked at the public integrity section when I was there.

SWALWELL: Did you know that he said of you, when it comes to investigating allegations of sophisticated federal criminal matters, Jack Smith is the gold standard. Do you know who Mr. James McGovern is?

SMITH: Yes, he was a prosecutor I worked with in New York.

SWALWELL: Did you know that he said of you, I have no idea what Mr. Smith's political beliefs are, because he's completely apolitical. So, are you a registered independent?

SMITH: I have no partisan loyalties. I don't -- I don't know if I'm registered as independent or not registered at all.

SWALWELL: Are you glad you accepted Attorney General Garland's request to be a special prosecutor, even though you've been dragged over political barb wire and your family has been subjected to death threats.

SMITH: I don't regret it. SWALWELL: Do you remember where you were on September 11?

SMITH: I do.

SWALWELL: What did you think of that day?

SMITH: I was in Brooklyn when that happened. I was at the command center that night. I worked on that investigation. I remember pretty clearly.

SWALWELL: Do you remember where you were on January 6?

SMITH: On January 6, I was living in Europe, working for the state department, seconded to a war crime tribunal.

SWALWELL: What did you think, as you watched on television, what happened at the Capitol that day?

SMITH: To be honest with you, I don't recall if I saw it that day or a later day, because of the time period --

SWALWELL: What did you think when you saw it?

SMITH: I was shocked. I was shocked by it. I obviously being in Europe and not following things as closely. I was not, frankly, up to speed on the events leading up to it.

SWALWELL: What shocked you about it?

SMITH: I just never seen anything like that happen in our country.

SWALWELL: Mr. Smith, I don't know if I'll ever have the honor to talk to you again. If I don't, please know that I and my colleagues on the Democratic side and even my Republican colleagues, when they speak privately, have nothing but respect and appreciation for what you tried to do and how you did it. You, unlike many here, are a man of honor. And I yield back.

UNIDENTIFIED MALE: Gentleman yields back. The gentleman from Alabama is recognized.

REP. BARRY MOORE (R-AL): Thank you, Mr. Chairman. Mr. Smith, you appear before this committee today, not as a neutral observer of the law, but at one point, you're one of the most powerful prosecutors in the federal system, armed with enormous discretion, minimal oversight and a mandate that goes to the very heart of our constitutional order.

[12:25:00]

You brought charges during an active election cycle. You relied on legal theories that had never before been tested in context. And you did so while disregarding long standing department of justice policies designed to prevent prosecutors from influence in elections. Mr. Smith, you claimed in your investigation, you developed proof beyond a reasonable doubt that President Trump engaged in criminal scheme to overturn the results in the 2020 election and to prevent lawful transfer of power.

However, a few weeks ago in Georgia, Fulton County election board official stated that 315,000 ballots were certified without required signatures on the tabulator tapes for poll workers. These signatures were required by the Georgia statute. If not counted, this could have turned the state of Georgia red, and I won't doubt there were similar schemes in many other states.

You were illegally appointed to serve as Special Counsel, since you were not confirmed by the -- by advance and consent Senate, and stated in the -- as a stated in the appointments clause. You also issued an indictment against then President Biden's most formidable political opponent. The candidate was President Trump, and you issued a gag order for President Trump during a 2024 election cycle. This was a major violation of President Trump's First Amendment rights and a poor attempt to outright censor, the leading political candidate.

These actions were nothing short of election interference. Nine senators, including Senator Tuberville from my state of Alabama, and multiple Republican members of the House of Representatives had their phone subpoena or their record subpoenaed. Some you seize their phones.

Even then, Speaker of the House Kevin McCarthy, one of the highest- ranking Republicans in the country, had his phone record subpoenaed, all for political gain. This subpoena is clearly violated the speech and debate clause. As John Keller, the DOJ's public and text integrity section addressed this issue in an email dated May 17 of 2023.

D.C. circuit president stated that the speech and debate clause in the bar is this. Our compelled, -- I'm sorry, bar on compelled disclosure is absolute. These instances are not only the tip of the iceberg about you and your team's flagrant disregard of the constitution. Mr. Smith, your actions have changed and damaged confidence in our justice system. Today, this committee will determine whether that damage was a result of reckless judgment, political bias or deliberate misuse of authority.

With that, Mr. Chairman, I'll yield you the balance of my time for questions.

JORDAN: I thank the gentleman for yielding. I want to go back to that email. If we could -- if we could put that up, this email that Mr. Gill highlighted a few minutes ago. This is the justification from the public integrity section. If you look at the bottom, John Keller public integrity section for going and getting the phone records -- toll records of members of Congress.

And there's a couple things I want to highlight. That first highlighted area, there is some litigation risk. So, they admit. There is some concern here. And they send this to -- the copy to Jack Smith's team. And then you go down later. As Mr. Gill pointed out, the case law is clear. A legislator may intervene and oppose such use. So, the risk is real.

But here's the deal. There was really no risk because we weren't going to know. They weren't going to tell us. They made sure they didn't tell us because they went to the judge and got a gag order. And look at the last sentence. The last sentence, low likelihood that any of the members listed below would be charged. So, they're not going to know, because we're not going to charge any of these guys. They didn't do anything wrong.

And the little -- so therefore, the litigation risk should be minimal. They're not going to be charged. They're not going to -- we're not going to go after them. They're not going to -- the litigation risk is minimal, and it's minimal because, frankly, it's nonexistent, because they're not going to know and we're going to make sure they don't know, because we're not even going to tell the judge who we're getting the gag orders on.

And yet, Mr. Smith thought that was a OK. That was just fine. That was in the letter and the spirit of the constitution. I find that. I find that hard to believe. And you know why, you know why it's -- you know why everyone knows it's wrong because the public integrity section at the Justice Department has now changed its policy. You can't do this anymore. They've changed their policy. But it was OK for Jack Smith to do it because we got to get Trump. We got to get the president. That's what this was all about. Yield back to the gentleman from Alabama.

MOORE: Thank you. Mr. Chairman, I yield back.

UNIDENTIFIED MALE: Mr. Chairman, have a unanimous consent request. Gentleman from New York is recognized.

UNIDENTIFIED MALE: Mr. Chairman, I ask unanimous consent entered to the record a transcript of the voice mail that President Trump's lawyer Rudy Giuliani left Senator Tuberville on January 6, in which he states, I'm calling you because I want to discuss with you how they're trying to rush this hearing and how we need you. Our Republican friends, to try to just slow it down, so we can get these legislators to get more information.

UNIDENTIFIED MALE: I Objection.

UNIDENTIFIED MALE: Gentleman yields back.

UNIDENTIFIED MALE: Your chair now recognizes the gentleman from California.

UNIDENTIFIED MALE: Thank you, Mr. Chairman. The House Judiciary Committee is responsible for helping to ensure the rule of law.