The former special counsel denied his investigation was politically motivated.
Former special counsel Jack Smith told Congress that he was still considering charging some of President Donald Trump’s co-conspirators in attempts to overturn the 2020 election when Trump won his second term in 2024.
The comment from Smith was one of the key takeaways from his 250-page deposition transcript, released by the House Judiciary Committee on Wednesday, which included repeated questions from lawmakers about whether his investigation was politically motivated. The transcript was released after calls for transparency following Smith’s closed-door hearing with Congress on December 17. His investigation into the alleged efforts by Trump and a number of co-conspirators to overturn the 2020 election was heavily criticized by some in the Republican Party as politically motivated. Former special counsel Jack Smith leaves after testifying in a closed-door deposition before the House Judiciary Committee on December 17, 2025, in Washington, D.C. Smith Planned to Charge More Co-Conspirators The former special counsel was asked why he had not charged alleged co-conspirators in the case, including former New York City Mayor Rudy Giuliani and Sidney Powell. “We—my staff—determined that we did have evidence to charge people at a certain point in time,” Smith told members of Congress earlier in December. “I had not made final determinations about that at the time that President Trump won reelection, meaning that our office was going to be closed down.” Smith was asked why the case was not built from the bottom up, using less senior witnesses or suspects, and instead appeared to be “laser focused” on Trump. He responded that, with so many people involved, he and his team needed to be as concise as possible to begin with. Trump’s Claims Were Not Protected Free Speech Smith was also asked about reported concerns from the U.S. Attorney General at the time, Merrick Garland, that prosecuting Trump over his election fraud claims would infringe on his First Amendment free speech rights. Smith said he and his team had known a free speech defense was likely, and that they wanted to “make clear that this was not about trying to interfere with anyone's First Amendment rights, that this was a fraud,“ adding that Supreme Court precedent meant that fraud was not protected by the amendment. “If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment,” he said. The lawmaker pressed him on previous contested elections, which had not seen prosecutions. Smith said what made this case different was the attempts to “target a lawful government function.“ Trump ‘Without Question’ Added to Threat to Mike Pence’s Life Vice President Mike Pence presides over a joint session of Congress to certify the 2020 Electoral College results on January 6, 2021. When asked about whether Smith and his team believed Trump’s words on January 6, 2021, influenced the attack on the U.S. Capitol, Smith said the president caused it and refused to stop the violence. “ instead issued a tweet that, without question in my mind, endangered the life of his own vice president,” Smith said, referring to Mike Pence. “And when the violence was going on, he had to be pushed repeatedly by his staff members to do anything to quell it.” Smith also said he felt Pence had paid a price for going against Trump’s wishes that day in certifying the election results. Pence had not agreed to be a witness in the case, however. Judges Were Not Given Names in Arctic Frost Phone Record Subpoenas Lawmakers asked Smith about the decision to subpoena phone records of sitting Members of Congress, a move that sparked outrage earlier in the year. Smith said that the so-called Arctic Frost investigation, which fell under the FBI, received DOJ approval to issue subpoenas for phone records. He was asked if judges were told who the records belonged to when signing documents demanding AT&T and Verizon hand them over. “I don’t think we identified that, because I don’t think that was Department policy at the time,” he said. Talking to Bannon Wouldn’t Have Been ‘Fruitful’ As part of questions around building the case against Trump and others, Representative Zoe Lofgren, a California Democrat, said that the January 6 Committee had tried to speak with Trump allies Steve Bannon, Peter Navarro, and Roger Stone, with the first two prosecuted and jailed, while Stone pleaded the Fifth. Lofgren asked whether Smith had spoken with any of the trio, to which he replied that the team had not. “We pursued the investigative routes that we thought were the most fruitful. We pursued those that we thought were necessary to get a complete understanding of the scope of the conspiracy. And given the highly uncooperative nature of the individuals you talked about, I didn't think it would be fruitful to try to question them,” Smith said. Case Was Not Politically Motivated Smith was pressed on allegations from Trump and others that his investigation was politically motivated, brought by a Department of Justice that had been weaponized against Trump by then-President Joe Biden. Smith repeatedly denied the allegations in the December 17 hearing, at times bluntly responding “no” to the question. “I made my decisions in the investigation without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election,” he said. “We took our actions based on the facts and the law, the very lessons I learned early in my career as a prosecutor.” Smith insisted that he and his team followed DOJ protocols and worked within the law, citing the large amount of evidence that allowed him to move the case forward. “If asked whether to prosecute a former president based on the same facts today, I would do so regardless of whether that president was a Republican or a Democrat,” he said.
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