Jack Smith Testifies
Before The House Judiciary Committee
Making sense of the circus
Dec 16, 2025
On Wednesday, former Special Counsel
Jack Smith, who investigated and charged Donald Trump in two separate cases,
will testify before the House Judiciary Committee. Smith wanted to testify publicly, but Republican
representatives insisted on closed-door proceedings.
The subject of Smith’s testimony
Why would Republicans balk at the
prospect of public hearings? Possibly because Democratic members will also be
able to question Smith about the Trump prosecutions. At least some of that
information is public, and Smith will be able to discuss it. There were reports
that his lawyers previously requested guidance from DOJ on how he should answer
questions about non-public materials, a standard practice for former DOJ
employees who speak publicly on matters they handled during their employment.
That could be uncomfortable for the president and awkward for members of his
party if done publicly.
Smith dismissed the cases against Trump in
November 2024, following his election, because DOJ policy prohibits the
prosecution of a sitting president. One case involved allegations that Trump
illegally possessed classified material at his Mar-a-Lago home. The other
involved charges related to January 6.
Why do Republicans want to hear from
Smith?
Smith, of course, is under
investigation by Republicans for his work as special counsel, part of
Representative Jim Jordan’s Trump-aligned push to claim that Joe Biden
weaponized the Department of Justice. In October, Senate Republicans announced that as part of the January 6
investigation, prosecutors used court orders to obtain the phone records of
nine GOP lawmakers: Senators Lindsey Graham of South Carolina, Bill Hagerty of
Tennessee, Josh Hawley of Missouri, Dan Sullivan of Alaska, Tommy Tuberville of
Alabama, Ron Johnson of Wisconsin, Cynthia Lummis of Wyoming, and Marsha
Blackburn of Tennessee. Representative Mike Kelly was also on the list. The
Pennsylvania Republican’s name came up because Senator Johnson had
publicly identified him as the source of the fake
slate of electors that there was an attempt to pass to Vice President Pence, a
claim Kelly denied.
The House initiated its effort to get
Smith to testify shortly after the disclosure that these records were collected
during the investigation.
Investigators working with Smith used
grand jury subpoenas to obtain the phone records. That’s an entirely lawful and
properly documented process. There is nothing nefarious about this—it would
have been prosecutorial misconduct not to get phone records, because there was
publicly available evidence suggesting the Trump/Giuliani camp had reached out
to these elected officials about blocking certification of the election on
January 6. Investigators sought records that could show if a phone call from a
number associated with Trump or Giuliani had been made to these people during
the relevant time. These records would only show whether a call had been placed
and, if it was answered, how long the call lasted. That’s all. This wasn’t a
wiretap.
This is a standard way of collecting
information during an investigation. Members of Congress’ phone records were
requested just like anyone else’s could be—not with an intent to prosecute, and
in fact, none of them were ever changed—but with an intent to learn the truth
about what happened so prosecutors could assess whether crimes had been
committed and, if so, what further investigation was appropriate. Members of
Congress don’t have immunity from criminal prosecution, but phone records also
routinely reveal witnesses and victims of a crime, essential information for
prosecutors to compile during an investigation. In this investigation,
developing witnesses who could talk about what the White House asked them to do
at this critical juncture was essential.
Alabama Senator Tommy Tuberville is an
example of the basis investigators had for believing they needed to learn more
about possible contacts. Tuberville was a newly minted Senator on January 6,
fresh off the ballot and onto the floor of the Senate. He said publicly that he spoke with Donald
Trump that afternoon. CNN reported the call was for “less than ten
minutes.” Trump’s defense team denied the call happened. But Utah
Senator Mike Lee’s office said Trump had accidentally called his
phone, which he carried over to Tuberville so he could talk with the president.
It would have been irresponsible under the circumstances not to check to see
what other calls were placed to Tuberville.
Jack Smith’s team used subpoenas to
collect evidence and also to develop investigative leads and witnesses.
House Republicans want more (but so do
Democrats)
There was news today that Republican
House Judiciary Committee members also want to take the testimony of four
current and former Department of Justice officials who worked on or with Jack
Smith, and who the Trump administration believes were involved in efforts to
obtain the phone records. They include:
·
Raymond Hulser, one of
Smith’s top deputies, was fired by the Trump administration in February after 34 years of
service prosecuting public corruption cases.
·
Kenneth Polite, the
first Assistant Attorney General for the Criminal Division during the Biden
administration. Polite left before the end of the administration.
·
Timothy Duree, an
attorney from DOJ’s fraud section who joined Jack Smith’s team and was fired by the Trump administration in
January.
·
Molly Gaston, another
DOJ lawyer who went over to Smith’s team. Gaston served as a prosecutor for
almost 10 years and was highly regarded for her public corruption work. Gaston,
too, was fired by the Trump administration.
“We believe you possess information
vital to our constitutional oversight responsibilities,” House Judiciary Chair
Jim Jordan wrote to each of the four, according to a report from CNN. No word on whether the
four will agree to interviews or wait for subpoenas. Presumably, Republicans
have no more incentive to permit these witnesses to testify publicly than they
do with Smith.
But the Committee’s Republicans aren’t
the only ones after information. Democrats want DOJ to release part two of
Smith’s final report on the Mar-a-Lago case, which remains under seal.
According to House Democrats, that report “details how Donald Trump knowingly
retained hundreds of presidential and highly classified records at his Mar-a-Lago
club and then deliberately defied subpoenas, obstructed law enforcement, hid
evidence, and lied about his continuing retention of these records.”
The lawsuit to release the report is
still pending in the Southern District of Florida before Judge Aileen Cannon.
House Democrats filed an amicus brief in that case and wrote to
Attorney General Bondi, demanding that she release the report before Smith
testified, so it would be fair game. “This Administration has repeatedly
boasted that President Trump is ‘the most transparent and accessible president
in American history.’ Your campaign to bury Mr. Smith’s report makes a joke out
of that claim,” they said to her. “You are permitting
prosecutors to be hauled before Congress to defend their work while denying
Congress and the American public the written record that would explain it.”
Judge Cannon has been dragging her
feet on ruling on the release since January. American Oversight, a bipartisan
group that works to expose misconduct and hold government accountable, filed a
petition for mandamus, asking that Judge Cannon be ordered to rule. The
Eleventh Circuit, in a rare move, granted that request in November and gave the
Judge 60 days to get it done, finding she had engaged in “undue delay.” Expect
Judge Cannon to take virtually all of those 60 days before she rules, although
perhaps Trump’s lawyers, at least those of them who haven’t joined his new
administration, will seek further delay.
The Trump administration is trying to
cast doubt on the Mar-a-Lago case
Ahead of the hearing, the
administration appeared to take a stab at delegitimizing Smith’s work. Fox News
ran a story Tuesday headlined, “FBI doubted
probable cause for Mar-a-Lago raid but pushed forward amid pressure from Biden
DOJ, emails reveal.” In a story they labeled as an “EXCLUSIVE,”
they reported, “The FBI did not believe it had probable cause to
raid President Donald Trump’s Mar-a-Lago home in 2022, but moved forward amid
pressure from the Biden Justice Department, with an official saying he didn’t
‘give a damn about the optics’ of the search, newly declassified documents
reviewed by Fox News Digital reveal.” The story claims that an “email revealed
that the FBI’s Washington Field Office did ‘not believe (and has articulated to
DOJ CES), that we have established probable cause for the search warrant for
classified records at Mar a Lago.’”
Some of the documents uncovered during the search at
Mar-a-Lago
MAGA Twitter exploded with claims
like this one:
“IT’S OFFICIAL: A bombshell memo was
just dispatched to Congress finding the Biden FBI DID NOT find PROBABLE CAUSE
to raid Donald Trump’s Mar-a-Lago, but prosecutors did it anyway.
CONSEQUENCES are needed.
This is an unprecedented miscarriage
of justice.”
Press Secretary Karoline Leavitt retweeted the story.
But even Judge Cannon rejected any
notion that some dissent within the ranks at the FBI invalidated the probable
cause used to obtain the Mar-a-Lago search warrant. While the case was in
progress, Trump’s lawyers asked for a Franks hearing, a
process for challenging the truthfulness of statements made by an agent in the
affidavit used to obtain a search warrant. If a defendant succeeds in a Franks hearing,
he can ask the judge to exclude any evidence seized in violation of the Fourth
Amendment’s prohibition against unreasonable searches. But Cannon didn’t find
in Trump’s favor in this instance, finding that there was sufficient probable
cause for the search warrant despite any dissent in the FBI ranks. Cannon held
that considering dissenting views by FBI agents would not have “altered the
evidentiary calculus in support of probable cause,” a remarkable ruling from a
Judge who leaned strongly in Trump’s favor throughout.
And, of course, the results of the
search, which revealed boxes full of classified documents, confirmed that
prosecutors got it right.
Moreover, reporter Carol Leonnig, who
wrote about these events in her recent book, INJUSTICE, posted on social media that the Fox News
report got it wrong. Leonnig posted that the Fox News report was
“misleading” because “Senior @FBI officials agreed there was ample probable
cause before the Aug 2022 raid - incl videotapes showing Trump aides had
secretly moved boxes of government records out of storage room.” She posted a page from the book that
explained her assessment.
There are people who are interested in
discrediting Smith and his investigation, and intimidating his coworkers,
before he even gets started with his closed-door testimony in the morning. But
the prosecutors involved aren’t people who back down. They are people who
believe in proceeding against the powerful without fear or favor—that’s what
public corruption prosecutors do. They don’t care, as this administration does,
about whether a target is a friend or a foe of the president; their commitment
is to doing justice. The administration can fire Jack Smith and his team, it
can harass them, but there are still heroes who believe in doing the right
thing, in the right way, for the right reasons. Tomorrow, Smith goes up against
House Republicans. We won’t be able to watch the proceedings because those
members of Congress are afraid to let us see them. But there is more to come.
This may well be a case of “Be careful what you ask for.” Jack Smith
undoubtedly has a lot to say.
We’re in this together,
Joyce