Assailed by Trump, special counsel Jack Smith lets indictments speak for him

For weeks, former president Donald Trump berated special counsel Jack Smith, assailing the prosecutor investigating him in two cases as a “deranged” and politically motivated hatchet man who should be jailed.

And for weeks, Smith stayed silent — until Tuesday, when a grand jury indicted Trump and accused him of committing multiple federal crimes when he repeatedly sought to overturn his 2020 presidential election loss to Joe Biden.

Soon after, Smith made a rare public appearance and delivered brief remarks, saying the riot at the U.S. Capitol on Jan. 6, 2021, “was fueled by lies, lies by the defendant.”

Smith spoke for just over 2½ minutes and took no questions. He also urged people to read the 45-page indictment bearing his signature, which charged Trump with perpetrating multiple conspiracies, allegations never before seen against a former U.S. president.

These activities underlined a pattern that has emerged since Smith, 54, was named special counsel last year to oversee the federal investigation involving Trump’s handling of classified documents after leaving office and the probe of Trump’s campaign to undo the results of the 2020 election. Smith never engages directly with Trump’s commentary and says almost nothing publicly, communicating instead through investigative activity, court filings and, in both cases, comprehensive indictments followed by brief statements.

While Smith has remained taciturn, a picture of the prosecutor has emerged through his work and court filings, which included charges filed against Trump in early June in the documents case and charges filed Tuesday in the 2020 election case. Together, the efforts reveal a prosecutor meticulously assembling two high-stakes cases with scope and speed, according to a review of his work and interviews with legal analysts.

“He’s obviously methodical, he’s obviously thorough, but he’s also just efficient,” said Lauren Ouziel, a former federal prosecutor in Manhattan and Philadelphia who is now a law professor at Temple University. “He’s not dillydallying. He’s taking the time he needs, but no more.”

Trump has denied any wrongdoing, accusing Smith and the Justice Department of trying to interfere in next year’s presidential election. His lawyers and allies have defended him in both cases, disputing the allegations and insisting that Trump acted lawfully.

[At the heart of the Jan. 6 indictment: What was in Trump’s head?]

While any prosecutor’s actions in a high-profile case are likely to draw scrutiny, Smith is operating under an unusually bright spotlight.

Attorney General Merrick Garland, who named Smith special counsel last year to take over the two Trump cases, pointed to the fact that Trump and President Biden were both seeking the presidency again in 2024. Since his appointment, Smith has been the focus of online threats and criticism, and he receives protection from a security detail.

Smith went into the role with considerable experience within the Justice Department, having worked as a federal prosecutor in New York and Tennessee. He also ran the department’s Public Integrity Section, taking over a group that was publicly shaken by an embarrassing scandal involving its prosecution of the late senator Ted Stevens, whose conviction was thrown out following the revelation that prosecutors withheld information from his defense.

Smith also worked as a war-crimes prosecutor at the International Criminal Court at The Hague, which was what he was doing when Garland appointed him last year.

A spokesman for Smith said the special counsel was not taking interview requests.

When his appointment was announced in November 2022, Smith vowed to “move the investigations forward expeditiously.” The investigations were underway when he took over, but some legal observers found it notable that charges were brought in both cases against Trump less than a year later.

“That’s warp speed in prosecutor world,” said Paul Butler, a law professor at Georgetown University and a former federal prosecutor. (Butler said he worked in the Public Integrity Section before Smith’s time leading the group and that the two men have met but do not know each other well.)

“He’s the guy you call when there’s a problem,” Butler said, pointing to Smith’s experience taking over the Public Integrity Section at a troubled time. “He’s a very ‘roll up your sleeves, get this job done’ kind of guy.”

In the documents case, a federal grand jury initially charged Trump in June with 37 counts, including willful retention of national defense secrets and conspiring to obstruct justice. Prosecutors in late July announced additional charges against Trump in that case. Two of Trump’s aides have also been charged in the case.

Then, a four-count indictment issued Tuesday in the election case accused Trump, who has repeatedly and falsely claimed the election was stolen from him, of conspiring to defraud the United States, conspiring to obstruct an official proceeding, attempting to obstruct an official proceeding and conspiring against people’s rights to have their votes counted.

After the second indictment was unsealed, Butler said it “underscored how exhaustive (Smith’s) investigation has been.”

While the indictment recounts a number of things that were publicly known, including through the Jan. 6 congressional committee’s work, Butler said Smith was able to get things that that panel did not, such as testimony from former vice president Mike Pence, who is referenced repeatedly.

Both indictments told coherent, clear narratives, legal analysts said, laying out the gravity of the allegations as well as the thoroughness of the investigation.

The classified documents indictment, for instance, “suggested he had gone down a lot of alleys and turned over a lot of evidence that supported his case,” said Robert Litt, formerly the principal associate deputy attorney general.

That indictment included information from Trump’s own aides and employees, their phone records and even one of his lawyers’ notes.

“He did not rush in for a half-baked case,” Litt said of the first indictment.

The new indictment, he said, similarly unspooled “a very compelling story.”

“If you assume, as I think you have to, that Smith has the evidence to back up the allegations in these two indictments, then yes, I think they’re both pretty strong cases,” Litt said.

Legal experts said that much of the election conspiracy case is likely to center on a question of intent — essentially, whether Trump believed his false claims while pushing to have the election results overturned.

And that, they said, could pose a challenge for Smith and his team.

“It’s certainly not an easy case, it’s not a slam-dunk case,” Ouziel said, “because it really comes down to mental state, to intent.

“It’s not a crime to spread lies; that is not a federal crime,” she said. “The crime is spreading the lies with the intent to prevent the lawful functioning of the electoral certification process. The crime is the unlawful intention.”

[Jeffrey Clark plotted to reverse Trump’s loss. Now he’s a GOP luminary.]

Ouziel said proving intent is often a hurdle for prosecutors, “but that’s going to be the challenge” for Smith’s team in the election case. That seemed to be why the indictment made a point of laying out times Trump appeared to acknowledge that he lost the election but still sought to overturn it, she said.

Trump’s legal team has signaled that his defense will at least in part focus on the argument that he sincerely believed his claims about the election.

“I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations were false,” John Lauro, one of his attorneys, said on Fox News.

Even though Trump has been charged, key elements of Smith’s work still remain unknown. Prosecutors could have additional evidence beyond what is included in an indictment, for instance.

Smith also mentioned Tuesday that the investigation of other people is ongoing. The indictment unsealed that day mentions six unnamed co-conspirators - most of whom are identifiable through other public information, but none of whom were charged so far, though that could change.

“These are ‘speaking indictments,’” Ouziel, the professor, said. “But in an important sense, the government is not really going to speak. They’re not really going to put their money where their mouth is until it’s time to go to trial and actually present the evidence.”

The latest charges against Trump add to his already crowded legal calendar heading into next year’s presidential election.

Besides Smith’s cases, Trump is facing criminal charges in Manhattan, along with two pending civil lawsuits, also in New York. All of those cases are currently scheduled to go to trial between this fall and next spring. He could also potentially face charges stemming from the Atlanta-area district attorney’s investigation into efforts by Trump and his allies to overturn his 2020 electoral loss in Georgia.

Trump has responded to these inquiries by lashing out at his investigators, saying they are all biased. He has pleaded not guilty to the charges in the classified documents case, along with the criminal case in Manhattan. When Trump appeared in court in the classified documents case to enter his not guilty plea, Smith was in attendance.

On Thursday, Trump traveled to Washington and made his first court appearance in the election conspiracy case. He pleaded not guilty. Once again, Smith was in the courtroom looking on.

Smith’s refusal to engage with Trump’s rhetoric is how prosecutors are supposed to act, legal experts said.

Prosecutors “make their cases in court,” Kay L. Levine, a law professor and associate dean for research at Emory University’s law school, said in an interview before the latest indictment. “They don’t make their cases in the court of public opinion.”

Levine said Smith appears cautious about doing anything that could bias potential jurors against Trump and willing to ignore the former president’s rhetoric.

“He seems like he is immune to getting baited into any kind of public debate about the case or what the case is going to be about,” Levine said of Smith. “When he has the evidence, he gets the indictment and goes forward.”

When Trump was indicted in the classified documents case, Smith delivered another set of brief remarks, praising the prosecutors working on the case and saying they were adhering “to the highest ethical standards.” The Washington Post has reported that individual prosecutors in the documents case have been threatened and harassed online.

While top prosecutors announcing indictments typically praise lawyers and agents involved in cases, some observers said Smith’s comments about his team seemed unusually pointed, given Trump’s commentary.

“I think Smith went beyond that here,” Litt said of Smith’s remarks after the classified documents indictment was unsealed. “And I think the circumstances called for that. When you are a line prosecutor, it’s important to know your boss has your back, and I think that’s the message Smith was conveying.”

The indictments and other court activity also showed that Smith seems focused on keeping the cases moving, experts said.

In the classified documents case, for instance, Smith’s team had asked for a trial as soon as this year, while Trump’s attorneys argued for delaying it until after the 2024 election, saying that time frame was needed to give him a fair trial. Delaying the case that long meant that if Trump or another Republican won, they could have sought to get the charges dropped.

The judge ultimately set the trial for May 2024. Last week, Smith’s team announced additional charges against Trump in that case but suggested in a court filing that that should not delay the trial.

After the latest indictment was unsealed this week, Smith again vowed to seek a speedy trial, putting an emphasis on pushing the case forward. That goal, legal analysts said, was also on display in the indictment.

“You don’t see him taking chances with the charges,” Mary McCord, the former assistant attorney general for national security, said after the second federal indictment. “The charges that he has brought in both the Mar-a-Lago case and this case are sort of heartland criminal charges that seem very applicable to these facts.”

Smith appeared to avoid bringing charges that could “raise novel legal issues or delay things,” McCord said.

And so far, Smith’s approach is visible largely in the cases he’s brought and in his team’s court filings.

“He’s speaking through the documents he’s filing in court,” Litt said, “and that’s what a prosecutor’s supposed to do.”