A Contrarian Take on Volume One of Jack Smith’s Report

The fact that we are already familiar with almost all of the facts in the first volume of Jack Smith's final report on January 6^th and Donald Trump's attempted self-coup, makes them no less horrifying.

The report lays out in surgical detail the five chapters of Donald Trump's effort to sabotage the 2020 election and perpetuate himself in power.

That begins with his pressure campaign to get state officials to reverse the election results, moves through his fraudulent elector scheme, then covers squeezing both DOJ and then Mike Pence to do his bidding, before culminating with the violence of January 6.

But because he has achieved through the ballot box what he failed to do through his 2020 post-election conduct, we now face the nightmare of a president who will have those same levers of power, and experience in how to use them. What’s more, this time he'll likely be surrounded by sycophants rather than of “grown-ups” in the room.

That return should be viewed roughly like the British march on Washington during the War of 1812. And yet normalization has been common.

Before turning to the details of the report, I want to add that I am realistic about what lies ahead—but also about our capacity as a nation to respond. Just as Trump was defeated in his 2020 attempted coup, and just as global autocrats have been successfully countered, I believe America has the wherewithal to stop democratic backsliding. Indeed, a guiding purpose of The Contrarian is to make that more likely than not.

Returning to the contents of the report: The four-page, single-spaced cover letter from Jack Smith to Merrick Garland is extraordinary in its own right. Smith is, of course, acutely aware of Trump's attacks against him and his staff. He emphatically pushes back on those attacks in defense of his own professionalism, noting that he is not a partisan but rather, “I have been a career prosecutor....over the last three decades.”

He is even more emphatic on behalf of his colleagues. He writes that his staff are “people of great decency and the highest personal integrity” who were subject to “threats to their safety and relentless, unfounded attacks.” Toward the end of the letter, he notes, “I believe the fact that our team stood up for the rule of law matters.” Indeed.

A letter from Trump lawyer Todd Blanche that objects to the release of the volume bookends the report and the Smith letter. Blanche’s missive is full of disinformation and even outright lying. The letter claims Trump’s “complete exoneration.“ Of course no such thing has happened.

Contrary to Blanche, Smith’s recital of the facts and the applicable law provide ample support for his already famous conclusion: “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 makes a persuasive case for what the outcome of this case would have been had it ever made it to a jury, as the New York's 2016 election interference and cover-up case did. We all know the outcome there.

As I pored over the report I was struck by this: no matter how many times you read the facts of this case, no matter how conversant you are with the details, and no matter how familiar you are with the events, they never cease to be striking. The fact for example that Trump's response on January 6^th to Mike Pence being within feet of being caught by the mob was, “So what?”

That remains a chilling sentiment, not only when reflecting on that day, but also because the man who uttered those callous words is returning to the Oval Office.

Turning from the facts to the legal arguments Smith makes, they are also strong, if equally familiar. Much of the analysis tracks with what I and distinguished co-authors wrote in a memo in July 2023 before the case was brought.

That’s not to say that there's nothing new here. There are tidbits sprinkled throughout the report that grabbed my attention. For example, I found it striking in the very last section on the law, entitled “Co-conspirator liability,” that Smith and his office had “made a preliminary determination that the admissible evidence could justify seeking charges against certain Co-conspirators. The office had also begun to evaluate how to proceed” if Trump had lost the election. Had he lost, we would’ve seen those cases in my view—and in fact such charges are pending in state courts, against individuals not subject to the immunity doctrine of US v. Trump.

Another reflection jumped out at me on my first pass through the report, which I undertook while sitting on Laura Coates’ set at CNN, flipping through the pages as other commentators and I took turns opining. It was that if Donald Trump was the defendant here, the US Supreme Court was the aider and abettor. That execrable immunity decision, utterly unfounded in American law, and the unconscionable half-year plus of US foot-dragging that the Supreme Court engaged in prevented a trial.

That trial was, after all, set for March 4, 2024. And if the Supreme Court had not gone completely off the rails, that case could have proceeded. Indeed, if the Court had simply moved with the same dispatch as other comparable historical cases when presented with the question in December 2023, we likely still might have had the trial, immunity doctrine and all. The trial could have taken place within its parameters.

It's important to bear the Supreme Court's culpability in mind as we prepare to defend our democracy here at The Contrarian and elsewhere in the days and years ahead. Will they be the court that, by a narrow 5 to 4 majority, refused to stop the New York criminal sentencing of Donald Trump, just last week? Or will they be the court that produced that reprehensible immunity decision?

We must not only hope for the former. We must work, litigate, and strive with every ounce of our beings for it— and for the functioning of our democracy across the board. We actually know what we have to do; the precedents are there. Yes, the challenges are daunting. But America has faced daunting challenges before. Other nations have done the same and in places like Poland they have taken on autocratic regimes and ousted them.

America's venerable democracy has deep strengths as well as the weaknesses currently on display. Deepest of them all is the strong pro-democracy commitment of many of the American people and the institutions that they have built— even if both are a bit numb and stunned at the moment. It’s time to wake up and the Smith report is a loud alarm to help us do that.