Jack Smith Will Resign And Issue Final Report On Trump—Here’s What To Expect From It
Key Facts
Smith intends to resign ahead of Trump’s presidency, The New York Times first reported Wednesday, after reports suggested the special counsel and Justice Department were planning to follow longstanding DOJ precedent to not prosecute sitting presidents and wind down their prosecutions against Trump as a result.
The special counsel is expected to draft a final report before he leaves, according to the Times and NBC News, in accordance with federal policy requiring special counsels to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel”—meaning why Smith decided to indict Trump on the charges he brought, and why he decided against any possible additional charges that were under consideration.
Smith’s report will summarize his two investigations into Trump, one for the ex-president’s efforts to overturn the 2020 election and one for Trump’s alleged withholding of White House documents and alleged obstruction against the government’s investigation into them.
It’s unclear how much new information the report will include, given that much of Smith’s evidence against Trump has already been made public through court filings, and the Times notes the time crunch means it could be much shorter than other recent special counsel reports, like Robert Hur’s report on President Joe Biden’s retention of White House documents.
While special counsels’ reports are directed to the attorney general rather than the public, per the federal statute, Attorney General Merrick Garland has traditionally released them, with redactions if required—but it’s unlikely a Trump-appointed attorney general would make the filing public if it doesn’t get submitted and approved before Inauguration Day, given the incoming president’s animosity against Smith and the fact the report will undoubtedly be critical of Trump.
When Could Jack Smith’s Report Be Released?
It’s unclear how soon Smith’s report could be made public. The special counsel is due to submit a filing in Trump’s election case by Dec. 2 laying out how the prosecution should proceed—and come to an end, most likely—so it’s doubtful any report would come out before then while the case against Trump is still active. Smith also has an appeal of Trump’s documents charges still pending in federal appeals court, after Trump-appointed U.S. District Judge Aileen Cannon dismissed the case, and he has not yet given any indication to the court in that case about how he plans to proceed. Another complicating factor that will drag out how long it takes for Smith’s report to come out is the fact it will have to be reviewed by intelligence agencies for classified information. That process took weeks for Hur’s report, the Times notes, and Politico points out that could be an especially arduous process when it comes to Smith’s coverage of the documents investigation, as that concerns numerous classified documents Trump took back to Mar-a-Lago.
When Will Jack Smith Resign?
Sources cited by the Times weren’t sure how long Smith planned to stay at the Justice Department before he ultimately leaves: While his goal is to leave before Inauguration Day, the Times notes those plans are still in flux and there could be “unforseen circumstances” like last-minute court rulings that keep him around longer. As it stands now, Smith is trying to “finish his work and leave” before Jan. 20 and has “no intention of lingering any longer than he has to,” sources familiar with Smith’s plans told The Times.
What Will The Report Say?
While it remains to be seen what Smith’s final report will say, the special counsel has detailed through numerous court filings how prosecutors believe Trump committed crimes by spearheading efforts to overturn the 2020 election and allegedly withholding White House documents. Smith has detailed in election case filings—including a major one released in October—how prosecutors say Trump pushed election fraud claims after the 2020 election despite knowing they were false, alleging Trump was repeatedly told by those around him his fraud claims were untrue and seemed to believe it himself, telling his family, “It doesn’t matter if you won or lost the election. You have to fight like hell.” He and his co-conspirators, who weren’t indicted, undertook a number of efforts trying to change the results, including pressuring state lawmakers and then-Vice President Mike Pence, and orchestrating a “fake electors” scheme in which GOP officials submitted false slates of electors to Congress, according to prosecutors. Trump also allegedly took little action to stop his supporters from rioting Jan. 6, with Smith alleging Trump watched the attack on the Capitol building play out on TV from the White House dining room while drinking Diet Coke. When an aide told him Pence had to be moved to a secure location, Trump allegedly replied, “So what?” In the documents case, prosecutors allege Trump took White House records back to Mar-a-Lago with him and then intentionally refused to turn them over to the government. Trump knowingly concealed classified documents from being turned over in response to a government subpoena, Smith alleges, employing aides to move documents so his lawyer wouldn’t find them. The indictment against Trump also shows White House materials being stored throughout Mar-a-Lago, including in its ballroom, in his bedroom and by a bathroom toilet.
Will Trump Retaliate Against Jack Smith?
While Smith’s reported planned departure will spare Trump from firing Smith, as the president-elect has vowed to do, he could still try to seek revenge against the special counsel after taking office. Trump has previously suggested he wants to retaliate against Smith—one of many perceived enemies Trump could target in a second term—saying in interviews before the election he wanted Smith, who is not an immigrant, to be deported. House Judiciary Chair Rep. Jim Jordan, R-Ohio, sent a letter to Smith on Nov. 8 asking him to preserve all of his office’s records that could be relevant to a congressional inquiry, suggesting GOP lawmakers will also try to go after Smith in the coming months. “Jack Smith’s abuse of the justice system cannot go unpunished,” billionaire Elon Musk, who’s become one of Trump’s key advisers, tweeted in response to Jordan’s letter.
Key Background
Garland named Smith as special counsel in November 2022 to oversee the federal government’s Trump investigations, appointing the third-party investigator in order to avoid perceptions of bias as Biden and Trump were slated to face off in the presidential election. Smith went on to indict Trump on 44 total felony counts between the two criminal cases, marking the first time a sitting or former president had ever been indicted on federal charges. While the cases were both scheduled to go to trial before the election—in March for the election case and May in the documents case—Trump and his lawyers managed to successfully drag them out. The federal election case was put on hold for months while the Supreme Court weighed whether Trump has immunity from criminal charges, which took until July—too late to go to trial before Election Day. Cannon appeared to slow-walk requests in the documents case for long enough that she ended up indefinitely postponing the trial, before ultimately dropping the charges altogether. Trump has pleaded not guilty to the charges against him and has long decried his criminal cases as “witch hunts” designed to harm his presidential campaign and railed against Smith, calling the special counsel a “thug” who’s biased against him.
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