Republicans’ takeaways from Smith’s testimony were, at best, tangential to furthering their claims of weaponization. The main one concerned the House select committee on January 6th, which conducted a separate, public investigation. Cassidy Hutchinson, a former aide to the White House chief of staff Mark Meadows, was the star witness, testifying in the summer of 2022 that Trump had lunged for the wheel of the Presidential limousine and demanded to be taken to the Capitol. But Smith described Hutchinson as “a second- or even third-hand witness,” and said that her account had been contradicted by someone who was present. “The partisan January 6th Committee’s ENTIRE case was just destroyed by . . . Jack Smith,” Republican members of the House Judiciary Committee posted on X. “Star witness completely unreliable!” A gotcha, perhaps, but of Democrats on the committee, not of Smith, who comes off as a careful prosecutor, mindful of courtroom limits on the use of hearsay.
The conventional wisdom about the criminal cases that were brought against Trump after his first term—four in total—has become that they were politically harmful to Democrats and legally unwise. That seems half right. Certainly, the onslaught of cases against the once and future President contributed to a sense of partisan piling on. But the indictments that Smith’s office secured were the strongest of the lot, and Smith’s testimony illustrated their importance. Others may have second thoughts about the wisdom of pursuing Trump. Not Smith. “If asked whether to prosecute a former President based on the same facts today,” he said, “I would do so regardless of whether that President was a Republican or a Democrat.”
Meanwhile, the Trump Administration’s allegation that Biden weaponized the Justice Department grows more surreal by the day. The Republican counsel opened his questioning of Smith by taking him through the elements of Justice Robert Jackson’s famous speech, as Attorney General in 1940, about the tremendous power of the federal prosecutor, to “pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” The counsel asked, “Do you agree with that?,” and you could see where this might be heading—an indignant account of vindictive prosecution.
But it was Trump who ordered the failed indictments of the New York attorney general Letitia James (three tries, no less) and the former F.B.I. director James Comey, and who fired prosecutors who refused to comply with his instructions. Susie Wiles, Trump’s own chief of staff, has acknowledged, “I don’t think he wakes up thinking about retribution. But when there’s an opportunity, he will go for it.” In late December, Attorney General Pam Bondi commented on an active grand-jury investigation into government weaponization during the Biden and Obama Administrations, claiming that there was “a ten-year stain on the country committed by high-ranking officials” and that one of the investigation’s subjects, the former C.I.A. director John Brennan, was among the “bad actors.” This is hardly the Jacksonian vision of prosecutors with “sensitiveness to fair play and sportsmanship.”
Perhaps the most maddening aspect of the Smith deposition was that he was effectively barred from commenting on the stronger of his cases, the classified-documents prosecution. Smith ended his cases after Trump’s reëlection; later, Smith submitted reports describing them, as required under Justice Department regulations. But, in January of 2025, the Trump-appointed judge overseeing the classified documents case, Aileen Cannon, blocked Smith’s report from becoming public, on the basis that charges were still pending against two co-defendants, the Trump aide Walt Nauta and the Mar-a-Lago property manager Carlos De Oliveira. The Trump Administration then moved to drop the cases against them. But Cannon dawdled in ruling on whether the report should be unsealed, leading an appeals court to chide her in November for “undue delay.”
An hour before Smith’s testimony, his attorney Peter Koski said at the deposition, the Justice Department informed Smith by e-mail that Cannon’s order meant he was barred from discussing any information contained in the report. Asked about why Trump refused to return the documents despite repeated requests, and about why he took them in the first place, Smith demurred. “Given the current state of the injunction, I don’t think that’s a question I can answer,” he said. A few days after the deposition, Cannon finally ruled that her order sealing the document would expire in February—at which point she could agree to release the report. Even if Cannon were to allow it, though, the final decision would fall to Bondi. Special-counsel reports have been routinely released, but don’t count on Cannon or Bondi to follow suit. The definitive account of the documents’ case could easily remain hidden from public view.
Smith’s deposition was, in all likelihood, as close as he will get to making a closing argument. It marks, most likely, the unsatisfying conclusion of an unsatisfying episode, one that underscored the limitations of the criminal-justice system in dealing with a lawless President. Now, with Trump calling Smith a “criminal” who should be “investigated and put in prison,” one question is the jeopardy that Smith himself may face. “I am eyes wide open that this President will seek retribution against me if he can,” Smith said at one point in the deposition. Still, he said, of his testimony before the committee, “I came here. I was asked to come here.” ♦
Ruth Marcus
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