The scene that unfolded today at a hearing before the Senate Judiciary Committee was a snapshot of politics in the U.S. today. Testifying under oath was Jack Smith, who as special counsel for the U.S. Department of Justice investigated Trump’s attempt to overturn the results of the 2020 presidential election and his retention of classified documents after he left office in 2021.
Questioning Smith were the senators, whose speech in Congress is protected. Article I, Section 6 of the U.S. Constitution states: “The Senators and Representatives…shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
The courts have interpreted this clause to give lawmakers broad protection for what they say in Congress. Republicans have used this protection to make outrageous accusations and to spread disinformation. That practice was on display in spades today.
Former attorney general Merrick Garland appointed Smith special counsel on November 18, 2022, three days after Trump announced he was running for the 2024 Republican presidential nomination. Garland said that since both Trump and Biden were likely to be presidential candidates, his appointment of Smith was meant to underscore “the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”
Trump was not happy about the appointment, calling Smith “a hit man for Obama.”
In June 2023 a grand jury indicted Trump on 37 “felony violations of our national security laws” and “participating in a conspiracy to obstruct justice,” in his retention of classified documents. Charged alongside Trump was his aide Walt Nauta, who is now the director of Oval Office operations. In December, after Trump was reelected, Smith dropped Trump from the case because of the long-standing position of the Department of Justice that a sitting president cannot be prosecuted. Judge Aileen Cannon, the Trump appointee overseeing the case, has blocked the release of Smith’s report, although it is standard for a special counsel to release a final report.
It is the other case that was the focus of today’s Senate hearing.
On August 1, 2023, a federal grand jury in Washington, D.C., charged Trump with four felony offenses “arising from his efforts to unlawfully retain power by using fraud and deceit to overturn the 2020 election results,” as Smith’s final report put it. Trump challenged the indictment on the grounds that a president has absolute immunity from criminal prosecution for actions performed as part of his official duties and that his actions trying to overturn the election were part of his official duties.
On July 1, 2024, the Supreme Court largely agreed with Trump, upending the principle that the United States was a nation of laws, not of men. The Trump v. United States decision sent Smith back to the drawing board to take the case, now stripped of anything that could fall under “official duties,” before another grand jury, and that grand jury returned an indictment for the same offenses. But after Trump was reelected, Smith moved on November 25 to dismiss the case because of the long-standing position of the Department of Justice that a sitting president cannot be prosecuted.
The case can be resumed once Trump is no longer president.
It’s unclear why Senate Republicans thought it was a good idea to remind people of Trump’s attempt to overthrow an election when the midterms are less than forty days away. Some of them, though, clearly intended to appeal either to Trump or to the MAGA base by using their protected speech to insult and abuse Smith.
Senator Eric Schmitt (R-MO) launched a hit on Smith, setting up the idea he was part of a conspiracy with Fulton County, Georgia, district attorney Fani Willis and her colleague Nathan Wade to persecute Trump.
Schmitt asked Smith: “Did you go to an NBA game between the Golden State Warriors and the Atlanta Hawks on February 3, 2024?”
Smith looked confused at the sudden turn in the hearing and asked Schmitt to repeat the question. Once Schmitt did, and asked him if he had ever been to Atlanta during his time as special counsel, Smith answered: “I really don’t think so. It’s possible I flew through the Atlanta airport on the way to Florida, but I do not have a recollection of going to Atlanta. I definitely did not go to a Hawks game. I’m sure of that.”
“Did you ever meet Nathan Wade or Fani Willis in your time as special counsel,” Schmitt asked.
“No,” Smith answered.
Then Schmitt pounced: “What would you say if I had a series of text messages from your team that said you were in Atlanta at a Warrior/Hawks game on February 3, 2024, the day after Willis and Wade announced their affair?” A staffer briefly flashed a poster board. Then Schmitt said: “I don’t think you know that we have this stuff, so I’ll give you a second to process it so you don’t, you know, perjure yourself.”
Smith said: “You just took it down really quick. If I could look at that again?”
Schmitt answered: “We’ll put it in a file. You can respond. I think you’ve already perjured yourself.” He went on to call Smith a “villain” and a “dirtbag.”
Smith said: “if this is the correct basketball game, I recall going to a University of Maryland basketball game where Caitlin Clark was playing right around that time…. You could check if that was the exact date. It was Maryland playing Iowa, I think, February of 2024.”
Senator Amy Klobuchar (D-MN) figured it out. Schmitt was accusing Smith of being in Atlanta at an Atlanta Hawks game, where he could hypothetically have met up with Willis and Wade. In reality, he was in Maryland at a game in which Maryland played the University of Iowa: the Hawkeyes.
Klobuchar addressed Schmitt: “Could it then be that University of Iowa’s the Hawkeyes, could that be it, and maybe before we show this kind of thing…that might be the confusion over the names of the team but perhaps you should’ve looked at it more carefully….”
Schmitt exploded, accusing her of “trying to rehabilitate the witness.” And yet, newscasters who reviewed tapes of the games found Smith in the stands at the Maryland game.
“You had the teams wrong, sir,” Klobuchar told Schmitt.
Indeed, although Schmitt’s poster board featured a picture of Fani Willis and another of the Atlanta arena, the messages on it appeared to be between Smith’s deputy special counsel J.P. Cooney and another person, asking, “Is 109 Row 1 reserved for Jack?” Hunter Walker of Talking Points Memo notes that the Atlanta State Farm Arena uses letters to denote rows in section 109 rather than numbers. The University of Maryland arena uses numbers.
After the hearing, Schmitt appeared on The Charlie Kirk Show, where host Andrew Kolvet cheered Schmitt’s attack on Smith. “Jack Smith is a total dirtbag and you caught him out on this NBA game…in Atlanta,” Kolvet said. “It was a great moment. Good for you on that.”
So Schmitt got his right-wing media hit from a completely fabricated storyline. One newscaster noted: “When a witness lies under oath before Congress, he can face prison. When a senator gets it wrong, he says he was just ‘asking questions’.”
Smith, in contrast, stood firmly on facts and the rule of law. “I have been fortunate to serve a country that I love for nearly 30 years in local, national, and international settings,” he said in his opening statement. “My service has spanned both Republican and Democratic administrations. I am not a politician, and I have no partisan loyalties. My career has been dedicated to serving our country by upholding the rule of law and the core principles on which our country was founded.
“I believe that there is no role for politics in the proper administration of justice. A prosecutor’s decisions must be based on the facts and the law. The status, power, prominence, or political affiliation of the subject of an investigation must play no role in decisions to investigate, prosecute, or decline prosecution.”
As special counsel, Smith said, he and his office “took actions based on the facts and the law.” “Our investigation developed proof beyond a reasonable doubt that President Trump engaged in criminal activity,” he said. “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.”
“The charges against President Trump were the result of the evidence,” he said. “Grand juries in two separate districts reached this conclusion based on his actions…. Rather than accept his defeat in the 2020 presidential election, President Trump engaged in a criminal scheme to overturn the results and prevent the lawful transfer of power….
“And…President Trump stored classified documents at his Mar-a-Lago social club after he left office in January 2021 and he repeatedly tried to obstruct justice to conceal his continued retention of those documents. Highly sensitive information was held in non-secure locations, including a bathroom and a ballroom where events and gatherings took place.”
Smith promised to answer the senators’ questions truthfully. “I will not be silenced by the continued threats of prosecution from the President or others.”
“As I appear before you today, it is my belief that the rule of law faces challenges unlike any we have experienced in our lifetime. Individuals are threatened with criminal investigation because they are perceived to have opposed the President. Predetermined outcomes increasingly seem to take precedence over the Justice Department’s long-standing core values, traditions, and norms. History teaches that the rule of law is rarely destroyed all at once. It is often weakened by attacks on the institutions and public servants sworn to uphold it. Since January 2025, we have witnessed precisely such an effort, including the vilification of the career prosecutors, FBI agents, and support staff who served on my team, simply because of their unwavering commitment to the fair and impartial administration of justice without regard for any personal costs.
“I myself have been threatened with jail by the President of the United States.
“I remain confident, however, that the rule of law will endure because so many continue to uphold it faithfully each day. Throughout our legal system, public servants have remained faithful to their oaths despite extraordinary pressure to do otherwise. Their example demonstrates that while fear may be contagious, courage is as well.”
