‘I apologise…’: Jack Smith stumbles as Biggs grills him over election fraud claims in Trump probe

Key Concepts

• Federal Conspiracy: Requires an agreement between two or more individuals to commit an unlawful act.
• Co-conspirators vs. Indicted Individuals: The prosecution chose to name individuals as co-conspirators in the indictment without formally charging them.
• First Amendment & False Statements: The debate centers on whether knowingly false statements about election fraud, made by an elected official, are protected under the First Amendment.
• Lawful Government Function: The definition of what constitutes a "lawful government function" targeted by the alleged conspiracy is a key point of contention, specifically relating to the certification of election results.
• Intent & Foreseeability: Establishing Trump’s intent and whether the violence on January 6th was a foreseeable consequence of his actions are central to the case.
• Rioter Motivation: The extent to which Trump’s rhetoric directly motivated rioters to participate in the January 6th attack.

Examination of Witness – Mr. Smith

This transcript details a contentious exchange during a hearing, likely a congressional inquiry, involving questioning of a witness, Mr. Smith, regarding the indictment of President Trump related to the January 6th Capitol attack. The questioning focuses on the legal basis for the charges, the decision to name co-conspirators without indictment, and the connection between Trump’s statements and the actions of the rioters.

I. Conspiracy & Co-conspirators

The initial line of questioning, led by an unnamed Chair, centers on the requirement of an agreement for a federal conspiracy charge. Mr. Smith confirms that a conspiracy necessitates an agreement between at least two individuals. The Chair presses Mr. Smith on the fact that the indictment lists co-conspirators but does not include charges against them.

• Specific Questioning: “When you made the determination to charge President Trump with conspiracy, you surely knew that you had somebody else that he had must have agreed upon somewhere to to to engage in this act that generated the conspiracy. Right.”
• Mr. Smith’s Response: He acknowledges identifying specific individuals as co-conspirators within the indictment.
• Frequency of Practice: The Chair questions how often Mr. Smith has charged only one member of a conspiracy while letting others “off the hook.” Mr. Smith states this is “not an uncommon thing to do in an investigation,” but struggles to recall specific instances.

II. First Amendment & Election Fraud Claims

A significant portion of the questioning revolves around the legality of Trump’s statements regarding election fraud. The Chair presents evidence from Mr. Smith’s deposition stating that an elected official who has lost an election cannot knowingly make false statements about election fraud to target a lawful government function.

• Deposition Evidence: “An elected official has been deemed to have lost could not knowingly make false statements about election fraud to target a lawful government function. You said that would be illegal.” (Page 27 of deposition)
• Clarification of "Lawful Government Function": Mr. Smith clarifies that this function encompasses the entire process of collecting, counting, and certifying votes, beginning around December 14th and extending through the inauguration.
• Distinction between Opinion & False Statements: Mr. Smith confirms Trump was free to believe and even state falsely that he won the election, but not to knowingly make false statements to obstruct a lawful government function.

III. Legality of Descertification Efforts

The questioning shifts to the legality of attempts to “descertify” state electors, a tactic pursued by some members of Congress on January 6th.

• Legality of Motion to Descertify: Mr. Smith confirms that a motion to descertify a state’s electors is not, in itself, a crime.
• Discussion & Planning: The Chair probes whether discussing descertification, even among multiple members of Congress, constitutes a crime. Mr. Smith affirms it does not.
• Hypothetical Scenario: The Chair presents a hypothetical scenario of members of Congress discussing descertification over breakfast, referencing the Democrats’ actions during Republican presidencies, and confirms this is not illegal.

IV. Trump’s Rhetoric & Rioter Motivation

The questioning transitions to the connection between Trump’s rhetoric and the actions of the rioters on January 6th. A representative from Arizona challenges Mr. Smith’s assertion that Trump’s statements engendered distrust and motivated the attack.

• Challenge to Causation: The representative argues that Mr. Smith’s claim that Trump’s statements and the resulting anger of his supporters constitute a criminal offense is “weak” and “misdirected.”
• Rioter Statements: A representative from North Carolina presents evidence from rioters who explicitly stated they were motivated by Trump’s words and believed he had invited them to the Capitol.
  • Rioter Quote 1: “I believed I was following up on the instructions of of former President Trump.”
  • Rioter Quote 2: “I marched to the US Capitol because President Trump said to do so.”
  • Rioter Quote 3: “He personally asked for me to come that day.”
• Trump’s Specific Rhetoric: Mr. Smith cites specific instances of Trump’s rhetoric, including telling supporters to “be wild” and repeatedly stating the election was stolen, even when there was no legal recourse. He also references Trump’s statement about needing to “fight” to save the country.
• Rioter Defense: Mr. Smith notes that some rioters attempted to use Trump’s words as a defense in their criminal cases. He references the case of Jacob Chansley (the “QAnon Shaman”), whose lawyer argued he genuinely believed Trump would walk with them to the Capitol.

V. Responsibility for January 6th

The final line of questioning focuses on Trump’s responsibility for the violence on January 6th.

• Mr. Smith’s Assertion: Mr. Smith unequivocally states that Trump was “the person most responsible” for what happened at the Capitol, that he “caused” the events, and that the violence was “foreseeable” to him.

Conclusion

The transcript reveals a rigorous and often adversarial examination of the legal and factual basis for the charges against President Trump. The questioning highlights the complexities of applying conspiracy laws, balancing First Amendment rights with the potential for inciting violence, and establishing a direct causal link between a leader’s rhetoric and the actions of their followers. Mr. Smith maintains the position that Trump knowingly made false statements that fueled distrust and ultimately led to the attack on the Capitol, while the opposing counsel attempts to undermine this claim by questioning the legal basis for the charges and the strength of the evidence linking Trump’s words to the rioters’ actions. The exchange underscores the high stakes and politically charged nature of the investigation.