Republican members of the House Judiciary Committee chose New Year’s Eve as the time to release the deposition of former special prosecutor Jack Smith, which was taken weeks ago. Reading the transcripts, it’s easy to see why the GOP dumped it on a day when fewer Americans would be paying attention to the news: Smith made them look foolish.
Smith’s testimony served as a refresher course for Americans who might have forgotten what President Donald Trump did to try to hold onto power after losing the 2020 election, as well as the cavalier way he dealt with sensitive national security information after leaving the White House. It will also help ensure that Trump will not escape the judgment of history.
It’s easy to see why the GOP dumped it on a day when fewer Americans would be paying attention to the news: Smith made them look foolish.
Smith methodically put to rest Republican suggestions that he was a political hitman and reminded the American people of the many ways the president continues to use the justice system to launch baseless attacks on his political opponents and people who had the temerity to insist that he was not, and is not, above the law. All told, not bad for a couple of hours spent answering questions before a highly partisan congressional committee.
Throughout his deposition, Smith did what skilled witnesses do. He never got over his skis, saying, “I can’t recall,” rather than issuing flat denials when he was asked about particular facts. And he controlled the narrative, using unfriendly as well as friendly questions from the Judiciary Committee’s Democratic members to lay out a compelling case that he and his colleagues had conducted their investigation of the former president with utmost professionalism and without a hint of political bias.
Take this exchange, in which a Republican committee member (whose identity is redacted) asked what the interrogator thought would be a decisive tell. “Was there ever a prospect after you were appointed special counsel when you thought maybe you would not bring an indictment against President Trump?”
In volleyball, that is called a set. Not missing the opportunity, Smith spiked the ball.
“Absolutely. When I took this case,” he patiently explained, “I did not know enough about the facts or the law to have a judgment about whether we should proceed in either case. … If the facts and the law did not justify going forward in this case, I would have been perfectly comfortable in doing that, as I have throughout my career in cases involving political figures. … So I did not have a preconceived outcome in mind when I took this job.”
Then, violating the first rule of good interrogation, not to pose questions unless you already know the answer, his Republican questioner asked, “Was there any point where you and your prosecutors that formed your team debated not bringing charges against the President?”
Smith’s answer: “Of course. I mean, that is the process of being a prosecutor, is you are analyzing evidence, you are collecting facts, and you’re debating whether it’s — what the facts mean, the inferences to be drawn from the facts, or debating what the law is and whether you can prove what you think is happening here or not. And so that was a continual process to decide if, in fact, we could go forward.”
Smith made a similar skillful pivot in response to a question about why he had sought phone records for nine Republican U.S. senators, but not for any Democrats, during his investigation. He described his adherence to long-established Justice Department practice, including consulting experts in its Public Integrity Section.
Smith’s deft testimony showed why, had the president gone to trial, he would not be in the Oval Office today.
He followed that with a devastating turnabout, saying it was the president himself who led him to focus on those people. “These records are people, in the case of the senators,” Smith observed, “Donald Trump directed his co-conspirators to call these people to further delay the proceedings. He chose to do that.”
“If Donald Trump,” Smith continued, “had chosen to call a number of Democratic senators, we would have gotten toll records for Democratic senators. So, responsibility for why these records, why we collected them, that’s — that lies with Donald Trump. “
Then, throwing a boomerang of accusations that he politicized justice, Smith laid out in detail how, soon after taking office, the Trump administration went after anyone associated with his investigation of the president. Smith labeled that a “travesty” and calmly, but forcefully, detailed the consequences of the Trump administration’s actions. “I think when you fire people who are career public servants serving both parties over many decades, you … lose the expertise about how to do the job properly. And that has an effect on the Department today, and it will have an effect on the Department for some time, if those people aren’t there to be leaders and to teach young lawyers how to be public servants.” Smith added that he had no doubt “that President Trump wants to seek retribution against me because of my role as special counsel.” Finally, Smith used his testimony to put on the public record that the evidence he collected was sufficient to prove beyond a reasonable doubt that the president had violated the law in the classified documents case and “that President Trump was by a large measure the most culpable and most responsible person in this (the January 6) conspiracy.” “These crimes,” Smith said, “were committed for his benefit. The attack that happened at the Capitol … does not happen without him … So in terms of why we would pursue a case against him, I entirely disagree with any characterization that our work was in any way meant to hamper him in the [2024] presidential election.” Smith emphasized that his team’s case was built on evidence provided by “Republicans who put their allegiance to the country before the party.” Game, set, match to Smith. His deft testimony showed why, had the president gone to trial, he would not be in the Oval Office today. And it showed that his Republican interrogators are not the kind of people who put “country before party.”
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
