I read through the whole deposition and collected the main points I discovered. The Republicans tried hard to paint Smith as prejudiced against Trmp and Republicans and as “wiretapping” Republican Senators and Representatives instead of simply and legally collecting when, where, and how long their phone calls were during January 6, 2021. The Democrats were more focused on Smith’s investigations into Trmp’s taking of top secret materials that didn’t belong to him and the fraud that set off the violence on January 6.
Smith was professional and measured, exactly what you’d like an experienced prosecutor to be.
https://d3i6fh83elv35t.cloudfront.net/static/2025/12/Smith-Depo-Transcript_Redacted-w-Errata.pdf
(15) Mr. Koski. The most powerful person in the world has said that Mr. Smith should be in jail
because of his work as special counsel, not because Jack did anything wrong, but because he
had the audacity to follow the facts and the law and apply them to that powerful person.
And through its actions, this Justice Department has demonstrated its eagerness to follow
President Trump's orders, despite the facts and the law.
(17) Smith: Our investigation developed proof beyond a reasonable doubt that President Trump
engaged in a criminal scheme to overturn the results of the 2020 election and to prevent the
lawful transfer of power.
Our investigation also developed powerful evidence that showed that President
Trump willfully retained highly classified documents after he left office in January of 2021,
storing them at his social club, including in a ballroom and a bathroom. He then
repeatedly tried to obstruct justice to conceal his continued retention of those documents.
(18) January 6th was an attack on the structure of our democracy in which over 140
heroic law enforcement officers were assaulted. Over 160 individuals later pled guilty to
assaulting police that day.
(26-27) I do remember that we knew that a sort of First Amendment defense would be part
of the [January 6] case. And I think when I had mentioned to you earlier about how to frame the case, we wanted to make clear that this was not about trying to interfere with anyone's First Amendment rights, that this was a fraud. And as you know, under Supreme Court precedent, fraud is not protected by the First Amendment.
Editorial Comment: Legally, what Trmp did was a fraud upon the public and his followers. He likes to label things as a "hoax." It might be good to be accurate under the law and label Trmp and his actions as a "fraud."
(27) Q: But the President's statements that he believed the election was rife with
fraud, those certainly are statements that are protected by the First Amendment, correct?
A: Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment...
There is no historical analog for what President Trump did in this case. As we
said in the indictment, he was free to say that he thought he won the election. He was
even free to say falsely that he won the election.
But what he was not free to do was violate Federal law and use knowing -- knowingly
false statements about election fraud to target a lawful government function. That he was
not allowed to do. And that differentiates this case from any past history.
(28) Our case was built on, frankly, Republicans who put their allegiance to the country
before the party.
And so the President got information from people he trusted on other issues. He
rejected it whenever it didn't fit him staying in office.
And there was a pattern in our case where any time any information came in that
would mean he could no longer be President he would reject it.
(29) Our case was a case in which the President was preying on the party allegiance of people who supported him.
(31) We had so many witnesses, again, so many witnesses who were allies of President
Trump available to us to testify. This was not a case where we needed more witnesses, it
was a case where we needed to be able to present the case in a streamlined way because
there was so much evidence.
(32-33) The first is the evidence here made clear that President Trump was by a large
measure the most culpable and most responsible person in this conspiracy. These crimes
were committed for his benefit.
The attack that happened at the Capitol, part of this case, does not happen without
him. The other co-conspirators were doing this for his benefit. So in terms of why we would pursue a case against him, I entirely disagree with any characterization that our work was in any way meant to hamper him in the Presidential election.
(33) Q So did you develop evidence that President Trump, you know, was responsible
for the violence at the Capitol on January 6th?
A So our view of the evidence was that he caused it and that he exploited it and that it was foreseeable to him.
Q But you don't have any evidence that he instructed people to crash the Capitol,
do you?
A As I said, our evidence is that he in the weeks leading up to January 6th created
a level of distrust. He used that level of distrust to get people to believe fraud claims that
weren't true. He made false statements to State legislatures, to his supporters in all sorts
of contexts and was aware in the days leading up to January 6th that his supporters were
angry when he invited them and then he directed them to the Capitol.
Now, once they were at the Capitol and once the attack on the Capitol happened, he
refused to stop it. He instead issued a tweet that without question in my mind
endangered the life of his own Vice President. And when the violence was going on, he
had to be pushed repeatedly by his staff members to do anything to quell it.
And then even afterwards he directed co-conspirators to make calls to Members of
Congress, people who had were his political allies, to further delay the proceedings.
(34) And with respect to D.C., both the district court and the court of appeals, a panel of
judges, found that his actions were, in fact, causing what we said they caused. They were
causing witnesses to be intimidated and endangering people.
And I believe it was the court of appeals also found that in addition to intimidating or
chilling witnesses who existed, it would chill witnesses who had not yet come forward
because they were afraid that they would be next.
So, yes, we did file that and I make no apologies for that.
(39-40) Q Okay. And do you always seek the -- you know, is it the practice of your team
to always seek the NDO[Non-Disclosure Order for toll records on phone calls]?
A Well, in this particular case, there was a grave risk of obstruction of justice,
given the obstructive conduct of President Trump as is set forth, for example, in the indictment in Florida. President Trump tried to obstruct that case in multiple ways.
Then - as I mentioned earlier, in the litigation, we had regarding 57.2, we had numerous instances of him, attempting to, in our view, intimidate witnesses, or keep them from cooperating.
And so, given that reality, we did seek non-disclosure orders for the tool record subpoenas you're talking about.
(42) And I would just -- I would just also add that my office had folks who were really the Department experts on Speech or Debate. And when we sought these subpoenas, we got approval from Public Integrity, who are the sort of keepers of that issue, and they concurred in us getting these subpoenas.
(68) But DOJ did not let you review Volume Two of your report?
The Witness. It may well have been there, but I chose not to review it, because I
didn't want any implication whatsoever that I was somehow violating the order by looking
at it, not being a member of the Department now.
(79-80) Raskin: but you added something which but you added something which I think was very interesting, which was a conspiracy to violate voting rights, which is something that we hadn't done [in the impeachment], and I wonder if you would take a moment to expound on why you thought you had to prove beyond a reasonable doubt that there was a conspiracy to violate the voting rights of the people.
Witness. Sure. The right to vote in a presidential election is one of the most sacred rights in America has – Americans have, and in this particular case, we had strong evidence that the defendant in this case sought to interfere with, obstruct, injure that right. We had evidence, and just a couple of examples, where President Trump was asking local officials to find 11,000 votes.
When you find 11,000 votes, your diluting other people's votes. We had evidence that they were targeting certain states and particularly certain parts of certain states, generally urban parts of States, to have those votes thrown out with no factual basis whatsoever. I believe we cited this in our final report, but there is even statements of the co-conspirators in this case, at least one that's coming to mind now, specifically saying, "We want to get rid of these votes. We want to subtract them." And, diluting the vote count in that way, there is strong precedent for that being a violation of the statute that we charged.
(94) having a record that is a hard record about a time, and the timeline of that afternoon was particularly important because the violence had started. The president refused to stop it. He endangered the life of his vice president, and then he's getting calls, and not just – not calls from Democrats, not calls from people he doesn't know calls from people he trusts, calls from people he relies on – and still refuses to come to the aid of the people at the capital. That's very important evidence for the criminal intent in our case.
(97) And what I recall was Meadows stating that "I've never seen Jim Jordan scared of anything," and the fact that we were in this different situation now [January 6] where people were scared really made it clear that what was going on at the capital cannot be mistaken for anything other than what it was.
(102-103) Q: To the extent Members of Congress and Senators are up in arms that this happened to them and they're seeking accountability, you know, who should be held accountable for answering these questions?
A Well, I think who should be accountable for this is Donald Trump. These
records are people, in the case of the Senators, Donald Trump directed his co-conspirators
to call these people to further delay the proceedings. He chose to do that. If Donald
Trump had chosen to call a number of Democratic Senators, we would have gotten toll
records for Democratic Senators. So responsibility for why these records, why we collected them, that's -- that lies with Donald Trump.
(109-110) Q And so the question ultimately is, it seems like the alternate-electors matter, it
seems like it was subject to a lot of starts and stops. And I wanted to know whether, after
you became the special counsel in November of 2022, were there any starts and stops, or
was that full speed ahead on that probe?
A That was a part of the case that we investigated from the time I started until
the indictment. It ended up being one of the most powerful parts of the case.
We had electors who were going to be witnesses. I had referenced earlier a
Congressman from Pennsylvania who had said this was an attempt to overthrow the
government. We had other electors who said, "I was told that this would only be used if
we won in litigation." And, obviously, the record in our case showed that the
co-conspirators were trying to use their elector votes despite that fact.
And, again, this goes to the point I made earlier. These are people who wanted to be electors for Donald Trump. They are not people who were opposed to him. They were not people who were from a different political party or enemies.
And so the fact that we had elector witnesses like that who felt either they'd been misled or they felt that this whole effort was an attempt to overthrow the government, I thought that was pretty powerful evidence. And so we moved that part of the investigation forward with the rest of the case.
(131-132) Q Okay. I'm going to use the "big lie."
So do you recall any evidence, when you were talking to Mr. Giuliani, that he truly
believed all the voter-fraud claims that he was putting out around the country?
A Our evidence was, he did not. And, in fact, when we interviewed him, he
disavowed a number of the claims. He claimed they were mistakes or hyperbole, even the
claim about Ruby Freeman, where he, you know, basically destroyed this poor woman's life
by claiming she was a vote scammer. President Trump did the same thing in a recorded call with the Secretary of State; he disavowed things he'd said in that interview.
(142) In your report, you say -- and this is a quote -- "The through line of all of Mr. Trump's
criminal efforts was deceit -- knowingly false claims of fraud."
Can you generally describe some of these knowingly false claims of fraud that were
spread after the 2020 election?
A Sure. There is a number of them. And, you know, part of the explanation
is -- is why they're false.
Q Uh-huh.
A And so, you know, just off the top of my head, an example is, there was -- he was on notice in this election that, in Pennsylvania, for example, that he would be ahead in the vote count for a period of time, and then when the mail-in ballots were counted, his lead would dissipate.
He chose to represent that phenomenon that he'd been briefed on, that was normal course of an election, that all sides knew that that's how it was going to be, he chose to present that as evidence of fraud. And to people who are not maybe as informed as him or informed as his ampaign managers who told him these things, that's the sort of thing that creates distrust.
There were fraud claims in, you know, Michigan, Georgia, where he was specifically disabused by people he trusted, by political allies, by the people, when he chose to call them, who were best situated to know. In Georgia, I'm thinking of the secretary of state. He reflexively rejected those things and continued to state false things after he'd been told repeatedly that they weren't true.
(143) Q And why was it important? It probably goes to the mindset, but why was it important, all of these repeat statements from individuals that his -- that Donald Trump's claims were untrue? How did that play into your overall investigative findings?
A Well, I think that the pattern and the depth of the pattern and the length of the pattern was pretty damning evidence that he knew these things were false. He only brought fraud claims that involved States that he lost. He only approached people generally who had party allegiance to him. When he was told that a fraud claim wasn't true, he didn't stop making it.
(144-145) Q You've mentioned earlier talking about, you know, individuals pushing back on
these false claims. When you were talking about the fake electors, you mentioned a Congressman from Pennsylvania who I guess might have -- would have been a witness who might have pushed back on the fake elector scheme being legal. Do you recall saying that earlier?
A I do.
Q Who was that member?
A To my recollection I think his name was Thomas Marino. He is a former U.S. Attorney and he is a former -- he's a Republican -- a former Congressman. And he had agreed to be an -- this is before the election -- agreed to be an elector for Donald Trump. And when he was presented with this idea of the fake elector scheme, my recollection of his reaction was that this was an attempt to overthrow the government and it was illegal.
(149-150) Q So if this would have gone to a trial, and using your years of experience being a
prosecutor and trial attorney, how would you have argued this admission of Mr. Trump, or how could you? What's a way you could have argued this admission from Mr. Trump to a jury?
A Well, I think -- I saw these admissions as corroborative of the larger case. We would have presented what I viewed as very strong witnesses from each State to explain how the elections occurred in that State and why the events, the outcomes were trustworthy, and debunking various fraud claims that President Trump made. We would present -- we would have presented the false claims that he made repeatedly, interspersed with debunkings to him, or other evidence that showed they weren't true and that that evidence got to him. This sort of evidence would corroborate that, but it would sort of be the cherry on top, if you will. The evidence that I felt was most powerful was the evidence that came from people in his own party who, as I said earlier, put country before party and were willing to tell the truth to him, even though it could mean trouble for them. I think witnesses like that, in my experience, would be very powerful witnesses in front of a jury. And this sort of evidence that you're pointing to here would be extra, but I think those other evidence -- those other witnesses would be very strong proof.
(152-153) The Witness. And how did he do this?
Well, what happened with the elector plan was when they came up with the idea of having these fake electors, there were certain electors who would just not put up with it. Thomas Marino -- I think he is from Pennsylvania -- is an example of that. And so as a result -- and he wasn't the only one in the scheme generally. As a result, they had to replace electors. And, again, just to keep in mind, all the electors we're talking about here are people who supported Donald Trump. These are people who signed up and said, "I want to be an elector for Donald Trump." And these people, when they stepped out, they had to replace them. And part of what's required under the Electoral Count Act is that there are procedures for doing that. And they couldn't follow those procedures because they were replacing people without the consent of the governor and things of that nature. Also in Pennsylvania -- I believe it was Pennsylvania -- there was a call where -- and there is a text of this -- where electors were pushing back on this and also wanting to be covered if there was liability and, you know, to be indemnified and things of that nature. And they wanted, like, statements in their certificates basically saying, "You're only going to use this if, you know, you win these lawsuits." And there was a text chain with some of the people who were carrying out this scheme for President Trump basically ended with, "These people should be shot," because -- "and that we can't let this snowball like this; otherwise, we're going to have to do this in all the other States."
(159) And so when you're committing a fraud, meaning you're not just saying something that's untrue, you're saying it knowing it's untrue or with reckless disregard for the truth, that's not protected by the First Amendment. People commit crimes all the time using words. And when someone commits a fraud, an investment fraud, or someone commits an affinity fraud, where you try to gain someone's trust, get them to trust you as a general matter, and then you rip them off, you defraud them, that's all words, but it's not protected by the First Amendment. And in a lot of ways this case was an affinity fraud. The President had people who he had built up -- who had built up trust in him, including people in his own party, and he preyed on that. Some people wouldn't do it. Others would. We're lucky that enough wouldn't that the election was upheld.
(173-174) I can tell you of one incident where we were reviewing the email chains of agents
who might be witnesses in the case, so a Giglio review, and we needed them to give us all their emails.
An FBI agent who was working on the case took that direction and actually provided us with his private emails with his family. We didn't ask for that. But he gave us his private emails.
In one of those emails -- and I can't remember if I saw this or my deputy saw this -- he was having a dispute with family members where it was about January 6th.
Once I saw that or heard about that, I decided he could no longer work on this investigation. And I think that was consistent with how I ran the office.
And I'll just -- I want to also be clear. I never saw that agent do anything that I
considered partisan. But just to make 100 percent clear to my staff -- and I don't -- this is
an agent who volunteered this beyond what was required -- I wanted to make it very clear that anything like that was not going to be part of our investigation.
(202-203) Sticking to the indictment, can you summarize for us the efforts that the defendant
took to conceal the boxes of classified documents in Mar-a-Lago?
A Sure. So paragraph 53 references the fact that a grand jury subpoena was issued on the 11th of May, and that two attorneys representing Donald Trump informed him of the subpoena, and he authorized them to accept service. So he was on notice of the subpoena at that point.
Eleven days later, Walt Nauta, who was -- the parlance is, I think, is his body man. He'd previously been a valet for him at the White House -- went into the storage room, which was the landing place, the last place these boxes were, and left 34 minutes later carrying one of President Trump's boxes.
The next day is the day that Donald Trump met with his attorneys to discuss the subpoena. They told him that they would need to search for the subpoenas and provide a certification to show that they were in compliance with the subpoena. And below that is a number of statements that one of those attorneys memorialized that Donald Trump said during that conversation, and paragraph 56 would be as well.
The Witness. [5:12 p.m.]
Paragraph 57. Donald Trump confirmed his understanding that one
of those attorneys would return to the club on June 2nd to search for any documents with
classification markings to satisfy the subpoena.
And Donald Trump indicated that he actually wanted to be there that day when he returned to look at the boxes. He told the second attorney that second attorney didn't need to be there.
And so after that meeting he actually -- he had planned to depart Mar-a-Lago, but he changed his summer plans to be there on the 2nd when the first -- Trump -- the attorney came to review the boxes.
(203-204) Q And how many boxes in total did Mr. Nauta remove from the storage room in
Mar-a-Lago? And I believe this is referenced in paragraph 59 as well.
A Yes. I believe, as it says in paragraph 59, between the 23rd of May, and I think it was June 2nd, he removed at Trump's -- Donald Trump's direction a total of 64 boxes and brought them to Trump's residence.
Q And he took them to Mr. Trump's residence from the storage room. Is that right?
A Yes.
Q And just to confirm, Mr. Nauta moved these boxes just a day after Mr. Trump met with his attorneys about responding to the grand jury subpoena. Is that correct?
A Well, yes. He actually -- the first day that is listed here is in paragraph 54, when he moved the first box. And then -- yes. So then, if you look at paragraph 59, subsection a, three boxes were moved on the 24th.
On the 30th, Trump and Nauta spoke by phone for about 30 seconds. And very shortly after that, over a period of a little less than two hours, Nauta moved another 50 boxes from the storage room.
(205) A Sure. Paragraph 63 summarizes that between May 23rd and June 2nd, Nauta, at Trump's direction, moved 64 boxes from the storage room to the residence. And then afterwards, Nauta and De Oliveira returned to the storage room only 30 boxes.
... What's the significance of moving all these boxes just before June 2nd of 2022?
A Because Donald Trump was on notice that his attorney was going to search that room, search for these -- for classified documents in that room. And in between the time he was put on notice of that and the time that he actually did that, at Donald Trump's direction, 64 boxes were taken out, but only 30 were returned.
(206) Do the evidence show that Mr. Trump attempted to or tried to direct someone else to delete security camera footage at Mar-a-Lago?
A Yes.
(214) Q And even earlier than that, I mean, would you say that President Trump had multiple opportunities to return the classified documents that he had retained back to the Federal Government voluntarily?
A Yes.
Q He had an opportunity to return them when the National Archives first asked for them back, right?
A Yes.
Q And then he also had another opportunity to return them when he was subpoenaed by the grand jury, right?
A Correct.
Q And he did not return all the documents back during that time, right?
A That's correct.
(221) Q Uh-huh. Do you know if he was intending to save those materials for his
Presidential library?
A You mean the classified documents?
Q The items in the boxes, all of them.
A Well, if he -- if his defense were that he was intending to take classified documents that he had no authority to take and he did it intentionally because he wanted to start a Presidential library and keep these documents in the locations that we talked about today, that's a crime.
(222) Q So, to the extent an adversary wanted to come in and steal some of these classified documents, they would've had to have gone through the Secret Service to get them, right?
A Well, as we alleged in paragraph 13 of the indictment, the Secret Service provided protection services to Trump and his family after he left office, including at Mar-a-Lago --
Q Uh-huh.
A -- but it was not responsible for the protection of boxes or their contents.
And the indictment states that Trump did not inform the Secret Service he was storing boxes of classified documents at Mar-a-Lago, meaning --
Q Right.
A -- they didn't know that they were protecting classified documents.
(230-231) Q Okay.
And the book ["Injustice," by Leonnig and Davis?] reports that, you know, Cooney drove to the Capitol and at the last minute succeeded in collecting two hard drives containing about 200 interview transcripts less than 24 hours before Republicans began shutting down the committee's website.
Is that something you have any recollection of?
A That level of specificity, I don't. I can't say that that's not accurate, but I don't
recall that level of specificity.
Q And do you know if the hard drives that you obtained contained video of the interviews the January 6th Committee conducted?
A As I sit here right now, I don't recall one way or the other. If they were in there, we looked at them when we provided them to the defense. But I don't know one way or the other.
Q Okay.
And when it comes to deleting documents, you know, while the Republicans didn't do that, what I can tell you is that the January 6th Committee files, when we were able to have access to them, did not include the videos that they -- that they recorded.
And so the question is, you know, do you know -- and I apologize if I'm repeating this,
but -- do you know if the Special Counsel's Office, you know, took possession of the videos
of the interviews? Because we didn't get it. They were gone by the time we had access
to it.
you can. A Yeah. As I sit here now, I don't know. What I recall is, "Give us everything
Give us any evidence you can."
(238) Q Uh-huh. And is it also fair to say that you were, in fact, trying to get these
cases wrapped up before the election in 2024?
A We were trying to move these cases expeditiously. In our briefs, we cited to
repeated Supreme Court precedent that states that the interest in a speedy trial, the right to
a speedy trial, isn't just the defendant's right, it's the public's right as well.
Q Right.
A And given the gravity of these crimes and the public interest, it was our duty to
move them forward as expeditiously as we thought fair and reasonable.
Q Okay. So, in hindsight, there's nothing about the aggressiveness of your
schedule that you would've done differently?
A I thought the schedule was appropriate.
