Early Tuesday morning, six days before Donald Trump will once again take the office of President of the United States, former Special Counsel Jack Smith’s final report on the criminal acts the president-elect allegedly committed to try and stay in power after losing the 2020 election has been released, despite heavy opposition from Trump and his lawyers.
Trump faced federal charges that he tried to steal the election won by President Joe Biden and obstruct Congress from counting Electoral College votes on Jan. 6, 2021, and that he unlawfully retained classified documents after leaving the White House. The charges were adjusted after the U.S. Supreme Court ruled that “official” acts taken by a president are protected and then dropped once Trump was re-elected.
However, Smith stressed that the charges against Trump were not dropped because he was innocent of the charges, as Trump has repeatedly claimed, but in accordance with longstanding Department of Justice policy against prosecuting a sitting president.
In the 174-page report, Smith says he would have won the case.
“Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial,” Smith wrote in the report dated Jan.7 and addressed to Attorney General Merrick Garland.
In 2021, the House impeached Trump for inciting an “insurrection,” although the Senate acquitted him with a 57-43 vote for conviction, short of the two-thirds majority required.
While much of the information in the report was revealed during the investigation by the bipartisan January 6 Committee, Smith’s report details the evidence and what the prosecution’s case would have been against Trump in the most sweeping look at his involvement yet. Only the first part, concerning Trump’s role in the attempted coup, has been released because other people charged in the classified documents case still have hearings pending.
Trump was quick to slam Smith, who resigned from the Justice Department Friday, and the report Tuesday morning.
“Deranged Jack Smith was unable to successfully prosecute the Political Opponent of his ‘boss,’ Crooked Joe Biden, so he ends up writing yet another ‘Report’ based on information that the Unselect Committee of Political Hacks and Thugs ILLEGALLY DESTROYED AND DELETED, because it showed how totally innocent I was, and how completely guilty Nancy Pelosi, and others, were,” Trump posted on his social media site, Truth Social.
Here are five takeaways from the report.
1. Trump was going to claim victory whether he won or not
The report takes pains to point out that Trump was told, repeatedly, by staffers, state officials and his own vice president that he had lost. He even seemed to admit it himself, the filing stated, saying “can you believe I lost to this f’ing guy?” to a staffer while watching Biden on TV in November.
But Smith alleges that Trump made plans to sow distrust of election results and claim victory well before the actual election. After advisors told him early returns would likely favor him and mail-in ballots would likely favor Biden — which is what happened — Trump said he would just declare victory before all the ballots were counted, the report said.
The filing points out instances where Trump himself called election fraud claims suggested by some of his allies unbelievable, including a claim from “Co-Conspirator 3” (believed to be lawyer Sidney Powell) about voting machines “that Mr. Trump privately acknowledged sounded ‘crazy’ before he publicly amplified them.”
During the vote count, members of Trump’s campaign tried to sow “chaos” by challenging counts in different regions and provoking confrontations, which were then used to claim that observers were not given proper access to the vote counting, Smith said.
According to the report, pushing forward to overturn the election based on claims he knew were untrue took Trump’s actions beyond “mere hardscrabble politics” and into criminal fraud.
Last October, a White House staffer reportedly heard Trump tell family members that “it doesn’t matter if you won or lost the election. You still have to fight like hell.”
2. Trump pressured state officials, Pence
Trump targeted Republican state officials, Smith said, urging them to ignore the vote counts and change the results.
“Significantly, he made election claims only to state legislators and executives who shared his political affiliation and were his political supporters, and only in states that he had lost,” Smith said.
That included calls to the Speaker of the Arizona House of Representatives and the Arizona governor, state legislators in Michigan, the chairman of the Pennsylvania Republican Party, and, famously, Georgia’s Secretary of State Brad Raffensperger, whom he pressured to “find 11,780 votes” — Biden’s margin of error in the state — in what Trump has since repeatedly referred to as a “perfect phone call.”
In each case, state officials told Trump there was no basis for changing results or they asked for evidence to the contrary, which was not provided, Smith said.
Trump was also unhappy with the Justice Department, which had reviewed the crimes of election fraud and found no support for any of them.
“Mr. Trump told the Acting Attorney General and Acting Deputy Attorney General that they should ‘just say that the election was corrupt and leave the rest to me and the Republican congressmen,'” Smith said.
3. Trump’s campaign organized a plan to use fake electors
After changing the votes didn’t work, Trump and his co-conspirators hatched a plan to organize the people who would have been his state electors had he won and “cause them to sign and send to Washington false certifications claiming to be the legitimate electors,” the report said.
The plan was presented to the would-be electors as a contingency ready to go in case Trump won the ongoing election litigation, Smith said. Some electors figured it out and “willingly assisted,” the report said, while some were unpersuaded and one Trump elector in Pennsylvania declined the attempt to “overthrow the Government.”
Trump’s co-conspirators planned to have Vice President Mike Pence present the fake slates of electors at the January 6 certification before the joint session of Congress, claim they were dueling slates and “negotiate a solution for Mr. Trump to seize power,” Smith said.
Pence resisted weeks of pressure from Trump to use his position as president of the Senate to change the legitimate election results. According to the report, Trump told him “hundreds of thousands” of people would “hate his guts” and think he was “stupid,” and that Mr. Pence was “too honest.”
Trump also publicly pressured Pence, telling crowds at a rally in Georgia, “I hope Mike Pence comes through for us, I have to tell you. I hope that our great Vice President, our great Vice President comes through for us. . . . Of course, if he doesn’t come through, I won’t like him quite as much.”
The next day, on Jan. 5, after Pence again declined to cooperate during a private conversation, Trump issued a false statement saying, “The Vice President and I are in total agreement that the Vice President has the power to act,” Smith said.
4. Trump exploited the Jan. 6 riot
The crowd of Trump supporters that gathered near the Capitol on Jan. 6 as Congress was certifying the election results had already been fired up with claims of election fraud. Trump repeated his false claims about dead and non-citizen voters and vote dumps, Smith said, and also told the crowd, which he had told advisors the night before was “angry,” that the election had been stolen, the country would no longer exist if the election was allowed to stand, and that the nonexistent “fraud” allowed them to”go by very different rules.”
He also falsely said that targeted states regretted their choice and wanted to change their electors and that Pence, who had the authority, might be persuaded to do so, Smith said.
“The lie regarding Mr. Pence was particularly deceptive because Mr. Trump knew what his supporters in the crowd did not,” Smith wrote, referencing a last phone call between the two men just before the rally, “that Mr. Pence had just told him in no uncertain terms that he would not do what Mr. Trump was demanding.”
After Trump told the crowd, “If you don’t fight like hell, you’re not going to have a country anymore,” thousands of his supporters marched to the Capitol building, breaking through barriers, violently attacking Capitol police and waving Trump signs and flags as they broke through windows and doors. Senate was forced to recess as members of Congress fled to their offices or secure locations.
Trump watched the riot on TV and through Twitter, the report said, and resisted requests from his advisors to try calming his supporters down. About 10 minutes after the Capitol was breached, Trump tweeted “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
The Secret Service was immediately forced to evacuate Pence. When Trump was told this, he replied “So what?” Smith said.
Trump tweeted twice over the next hour or so, urging supporters to “stay peaceful” and saying “WE are the Party of Law & Order.”
Two hours after rioters entered the Capitol, Trump released a video message finally asking them to leave while still claiming the election was stolen and telling the rioters “we love you, you’re very special.” Another tweet nearly two hours after that called the rioters “great patriots” and to “go home with love & in peace. Remember this day forever!”
The report quoted several Jan. 6 defendants who blamed Trump for their presence at the Capitol and their belief that action was needed to save the country.
Since then, Trump has continued to support the Jan, 6 rioters, calling them “patriots” and “hostages,” calling the insurrection a day of love, and vowing to pardon some or all of them once he is again president. Smith said this provided “additional evidence of his intent by continuing to support and ally himself with the people who attacked the Capitol.”
5. Smith considered charging Trump with insurrection
Smith says in the report that he considered, but opted against, charging Trump with the Insurrection Act after concluding there were “reasonable arguments that it might apply.”
The Insurrection Act provides that anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto,” could be fined, imprisoned for a maximum of 10 years – and “shall be incapable of holding any office under the United States,” according to the report.
However, Smith said his team was unable to find existing case law where someone had been charged for inciting, rather than directly engaging in, insurrection.
“However strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first,” he said.
Smith also chose not to charge Trump with conspiracy with militia groups to impede or injure an officer of the U.S. because he did not have evidence that the co-conspirators “specifically agreed to threaten force or intimidation against federal officers.”
As it is, Trump will enter the White House as the first U.S. president in history to be impeached twice, and the first president to be convicted of a felony after he was found guilty of 34 counts of falsifying business records to cover up hush money payments to an adult movie actor.
This article originally appeared on Palm Beach Post: Jack Smith report on Trump and 2020 election: 5 things to know