How Trump Got Away With It, According to Jack Smith

Days before Donald Trump will return to the White House, Special Counsel Jack Smith relayed an unsettling message to the American people: He had unearthed enough evidence to potentially send the incoming President to prison. 

The Justice Department released on Tuesday its final report on Smith’s charges alleging that Trump illegally conspired to overturn the 2020 election, saying that prosecutors secured the goods to convict Trump had his November victory not prevented the case from proceeding. “But for Mr. Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial,” the document says. 

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The report amounts to a remarkable rebuke of someone soon to assume the powers of the presidency. While few of the findings were new—Trump’s schemes to remain in office after losing the 2020 election have been extensively chronicled through news reports, documentaries, and landmark congressional hearings—it’s yet another detailed account of how the President-elect waged an assault on American democracy and the U.S. government he will soon lead once again.

Smith’s team interviewed more than 250 people, obtained grand jury testimony from more than 55 witnesses, and said the findings of the House committee that probed the attack constituted “a small part of the office’s investigative record.” In the sprawling 137-page report, Smith unspools Trump’s efforts to block the peaceful transfer of power, from pressuring state and federal officials to nullify the election outcome to inciting a mob to ransack the U.S. Capitol on Jan. 6, 2021. Smith accuses Trump of trying to obstruct the certification of Biden’s election “through fraud and deceit,” including by encouraging “violence against his perceived opponents” in the days and weeks leading up to the insurrectionist riot. 

“As set forth in the original and superseding indictments, when it became clear that Mr. Trump had lost the election and that lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power,” the report says.

The case faced a series of unique challenges that come with not only investigating a former President but the inexorable force of Trump himself. Smith outlined legal tussles over executive privilege, the Supreme Court’s July ruling on presidential immunity, and Trump’s scare tactics. “Mr. Trump used his considerable social media presence to make extrajudicial comments—sometimes of a threatening nature—about the case, and the Office was forced to pursue litigation to preserve the integrity of the proceeding and prevent witness intimidation.”

At the same time, the case suffered from a public perception that it was politically motivated and the fact that it was transpiring amid an election season. “Mr. Trump’s announcement of his candidacy for president while two federal criminal investigations were ongoing presented an unprecedented challenge for the Department of Justice and the courts,” Smith wrote.

Those weren’t the only roadblocks. The report says that prosecutors considered charging Trump with violating the Insurrection Act—a 19th century statute that prohibits engaging in a rebellion against the U.S. government—but ultimately decided there was not enough evidence that Trump intended to instigate the “full scope” of violence on Jan. 6. 

Many of those who committed violent acts may soon escape legal peril. Trump has said that one of his first acts after taking office on Jan. 20 will be to pardon most, if not all, of the defendants charged in relation to the attack on the Capitol. “It’s going to start in the first hour,” he recently told TIME. “Maybe the first nine minutes.” On Sunday, Vice President-elect J.D. Vance said on Fox News that those who “committed violence” on Jan. 6 “obviously” shouldn’t be pardoned.

Trump’s lawyers were shown a draft copy of the report more than a week ago and fought against its release, calling it a hit job that was designed to “disrupt the presidential transition.” They are also trying to thwart the release of a separate Smith report on his prosecution of Trump for mishandling classified documents. On Monday, Judge Aileen Cannon, a Trump appointee, blocked its immediate release and scheduled a hearing Friday for how to handle that volume. 

In each case, though, Trump won’t face consequences. Smith dropped both cases after Trump won the 2024 election, citing a Justice Department policy that prohibits the prosecution of sitting presidents. Under a separate agency regulation, he was obligated to submit a final report—one volume on each prosecution—to Attorney General Merrick Garland, who has committed to publishing both documents.

But with Trump’s inauguration in less than a week, the report will have little tangible effect beyond its addition to the historical record. To Trump, who possesses a profound ability to evade accountability, that in itself marks a victory. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” Trump posted on his social media platform. “THE VOTERS HAVE SPOKEN!!!”