Special counsel stands by decision to prosecute Trump

The U.S. Department of Justice in the early morning hours of Tuesday released half of a two-part report on its investigations into President-elect Donald Trump. The 174-page released section, authored by recently-resigned Special Counsel Jack Smith, details his investigation into whether Trump tried to overturn the results of the 2020 presidential election. Trump has denied the claim and dismissed Smith’s investigations and prosecutions as being politically motivated.

Smith wrote that he had taken the special counsel job without any preconceived notions about what the outcome would be and that he wasn’t influenced by politics. While his team did much of the legwork of the investigations, the ultimate decision to prosecute Trump was Smith’s own, he said. Although the charges were dismissed, he still stands by his decision.

“While we were not able to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law matters,” Smith wrote.

Why is Trump not facing prosecution? Department policy prevents DOJ officials from prosecuting sitting presidents. Trump is scheduled to take over the White House next week. While Smith affirmed that dismissing the case against Trump was the right course of action, he noted that the prosecution against him began before he was elected president for a second time.

Another DOJ Special Counsel, Robert Hur, explained early last year that the DOJ’s policy of not prosecuting sitting presidents helped him decide not to recommend criminal charges against U.S. President Joe Biden for allegedly mishandling classified documents. But Hur also admitted that the DOJ likely would not be able to secure a conviction against Biden.

Unlike Hur, Smith remained adamant in his report that the DOJ could have obtained a conviction against Trump.

Why is this report getting released now? Smith’s report comes after U.S. District Court Judge Aileen Cannon refused to extend a temporary order preventing the department from releasing the report. Cannon last week said the department could not release the report until three days after the U.S. 11th Circuit Court of Appeals approved its release—unless the higher court said the report could be released immediately. The appeals court told the department it could release the report, but did not lift the three-day delay Cannon imposed on its publication.

But this is only half of a larger report? The DOJ last week said it would not release the second half of Smith’s report, which deals with investigations into whether Trump mishandled classified documents. Currently, two of Trump’s former co-defendants, Waltine Nauta and Carlos De Oliveira, still face the possibility of a jury trial. Nauta and De Oliveira last week asked both Cannon and the judges of the 11th Circuit—for the report to remain under wraps. The two co-defendants argued the report could prejudice potential jurors against them if the DOJ released it before a jury heard their case.

Dig deeper: Read my report in The Sift about how Trump received no punishment last week after a jury found him guilty on 34 counts of falsifying business records.