Former special counsel Jack Smith’s public testimony Thursday should have been a sober accounting of the criminal investigations into President Donald Trump and the Jan. 6 Capitol riot. Instead, the hearing predictably devolved into a scripted parody of reality TV.
The session began with a grandstanding opening statement from House Judiciary Committee chairman Jim Jordan, R-Ohio, followed by prepared speeches and hostile questions that not only ignored Smith’s prior testimony, but often ignored his presence altogether. For example, Jordan declared that Smith’s investigation was “always about politics” without offering a shred of evidence.
Over the course of five hours, Republicans meticulously avoided discussing the substance of what Smith described as Trump’s “criminal scheme” to overturn the 2020 election. Rather than engaging with the evidence, they retreated into well-worn political grievances and attempts to impugn Smith’s character.
Smith’s multi-year investigations resulted in two federal indictments against Trump, convictions of nearly 1,300 Jan. 6 rioters and incalculable controversy. Thursday’s hearing provided a rare opportunity for transparency. It was a chance for lawmakers to scrutinize the evidence underlying the prosecutions, challenge Smith’s decision-making and confirm the absence of political influence behind the special counsel’s work.
Smith had long volunteered to testify publicly, but Republican leadership initially resisted. The committee chose instead to have him testify behind closed doors, focusing on the alleged “weaponization” of the Justice Department under President Joe Biden.
During last month’s eight-hour deposition, Smith provided candid and detailed answers about the evidence against Trump for obstructing the certification of electoral votes on Jan. 6, 2021, and for his mishandling of classified documents at Mar-a-Lago. Because the Republican-led committee already released the full transcript and video of Smith’s Dec. 17 deposition, the motivation for Thursday’s public encore was obviously political.
Over the course of five hours, Republicans meticulously avoided discussing the substance of what Smith described as Trump’s “criminal scheme” to overturn the 2020 election.
Both parties saw value in having Smith repeat his earlier testimony in a televised setting: Democrats aimed to showcase a methodical, evidence-based investigation, while Republicans sought to discredit Smith’s methods and rewrite the history of that day. (The Republican agenda was revealed by another congressional subcommittee — ostensibly formed to investigate “remaining questions surrounding” Jan. 6 — whose first public hearing last week was filled with false and misleading claims.)
On Thursday, Republicans continued the misdirection-driven circus. Republican committee members questioned Smith about subpoenaing phone records of certain Congressman, characterizing the tactic as illegal “spying.” However, Smith testified that the records were evidence of Trump’s attempt to reach lawmakers to delay certification. Furthermore, the subpoenas were approved by a judge and complied with then-existing Justice Department policy.
Rep. Darrell Issa, R-Calif. — who is not a lawyer — argued that there was no criminal conduct if Trump believed he actually won the election, then didn’t allow Smith to respond and disregarded his detailed deposition testimony as to why this argument was not a legal defense to the charges.
Steering clear of any substantive evidence, Rep. Lance Gooden, R-Texas — who is also not a lawyer — advanced a fallacious argument that Smith’s appointment was invalid due to technicalities with his swearing-in.
All of this distracts from the fundamental principle at the heart of this: if a president commits a crime while in office, should they be prosecuted?
If the answer is yes, then the party in power should not matter. Inevitably, the president’s die-hard supporters will decry any prosecution as a “witch hunt,” just as many of their opponents may presume guilt before a single piece of evidence is offered. But that is precisely why objective metrics — the independence of the prosecution, the normalcy of the process and the weight of the evidence — matter. They are the tools we have to distinguish between a righteous prosecution and partisan retribution.
Smith’s use of those tools was not problematic or unprecedented. He was appointed as an independent special counsel — a customary practice since Watergate, even though U.S. District Judge Aileen Cannon later issued a controversial and legally dubious ruling that the appointment was unconstitutional. And President Biden never directed Smith or anyone at the Department of Justice to prosecute Trump. In fact, Smith testified he never communicated with or received any guidance from President Biden related to the Trump investigations.
This all looks even more benign when contrasted with Trump’s own political prosecutions.
Any objective observer knows which administration has weaponized the DOJ for political gain. Trump publicly demanded the prosecution of his perceived political enemies, effectively ordering Attorney General Pam Bondi to target former FBI Director James Comey and New York Attorney General Letitia James. He removed the U.S. Attorney for the Eastern District of Virginia, a career prosecutor who Trump had appointed, for failing to bring charges against Comey and James. In his place, Trump installed Lindsey Halligan — one of his former personal attorneys who had no prosecutorial experience — to make sure charges were filed. In November, a federal judge dismissed the Comey and James cases after finding Halligan’s appointment was illegal. (Earlier this week, a different federal judge issued a scathing opinion reprimanding Halligan for “masquerading” as the U.S. Attorney in violation of the November ruling. She finally resigned later that day.) The Comey and James cases are only pieces of a broader campaign against the President’s critics. Trump’s Justice Department has reportedly launched criminal investigations of several political adversaries, including Sen. Mark Kelly, D-Ariz., Sen. Adam Schiff, D-Calif., Rep. Eric Swalwell, D-Calif., and Minnesota Gov. Tim Walz. The DOJ has even targeted Federal Reserve Chairman Jerome Powell and Governor Lisa Cook, apparently because Trump disagrees with their monetary policy. Against the backdrop of these perversions of our justice system, Trump’s vitriol towards Smith — he has called him “deranged,” “a criminal” and “a disgrace to humanity” — is the ultimate projection: a man accused of breaking the law attacking the man responsible for upholding it. Any objective observer knows which administration has weaponized the DOJ for political gain. Yet Republicans spent much of Thursday accusing Smith of disregarding prosecutorial norms, while ignoring the Trump administration’s flagrant violations of constitutional guardrails. The hypocrisy is suffocating. It is unclear whether congressional Republicans are intentionally misleading the public to rile their base and appease Trump, or whether they somehow actually believe their own narrative, which has become nearly incomprehensible. It is a world in which Jack Smith and other career federal prosecutors are the bad guys, the Jan. 6 defendants who stormed the Capitol and attacked law enforcement are innocent victims of a government conspiracy (which somehow occurred during Trump’s first administration), and Trump is a bastion of normalcy working to restore the DOJ ‘s independence. This hallucinatory spectacle raises a jarring question: are we still living in a reality rooted in objective facts, hard truths, and legitimate concerns about our republic? Or have we already succumbed to existing in a world where facts are elective, nuance is dead and 250 years of constitutional values are subordinated to Trump’s demands for political revenge? This nation cannot survive without a shared foundation for truth. While disagreement about the meaning of facts can be healthy, propping up these blatantly false narratives is malignant cancer. Shifting how we view facts based only on what the president wants to be true makes progress impossible and provides an instrument for autocracy and repression. If we continue to sacrifice the truth on the altar of a partisan charade, the decline of our democracy will not just be a storyline on our televisions: it will be our reality.
Andrew Warren
Andrew Warren is Deputy Legal Director at Democracy Defenders Action. He previously was a prosecutor with the U.S. Justice Department and the elected district attorney in Tampa, Florida. 
