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The Situation Room

Jack Smith Testifies Publicly About Trump Probes; Smith: "Trump "Has Sought Revenge" Against Investigators. Aired 10:30-11a ET

Aired January 22, 2026 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[10:30:00]

JACK SMITH, FORMER SPECIAL COUNSEL: I will rely on his public statements about that. I understood my role as special counsel was governed by the regulations which required me to make an independent decision on my own.

REP. KEVIN KILEY (D-CA): So, certainly you would agree it was important to approach the investigation with humility and restraint. Is that fair?

SMITH: Yes. And that's what I sought to do. I sought to conduct -- \

KILEY: And you thought you possessed those qualities? In fact, you testified at your deposition, quote, "I thought I was the right person for the job." Of course, some disagreed. Constitutional law professor Jonathan Turley, for example, has said, quote, "Jack Smith has a reputation for stretching criminal statutes beyond the breaking point." I assume you disagree with that statement by Professor Turley.

SMITH: I do disagree with that statement. I think my career speaks for itself. I have --

KILEY: But that statement was also -- and I'm sorry to have to interrupt, I just have a short amount of time. That statement was also echoed by the United States Supreme Court in a unanimous opinion in McDonald v. the United States, where the court overturned convictions that you had pursued against a former governor criticizing your boundless interpretation of the federal criminal statute. It issued that opinion, was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. So, do you also disagree with that statement by those justices?

SMITH: I have conducted my career in a nonpartisan fashion. That particular case, the legal position that the department took, that wasn't my personal position. That was the position of the department.

KILEY: I see. So, Mr. Smith, I've had the opportunity during my time on this committee to review the work of two special counsels, John Durham during, appointed during the Trump administration and Robert Erd during the Biden administration. And in both cases, they seem to exhibit that humility and restraint that we talked about. But in reviewing in detail the way you conducted this investigation, I see a very different mode of operation, one that sought maximum litigation advantage at every turn, one that repeatedly circumvented constitutional limitations to the point that you had to be reined in again and again throughout the process.

For example, shortly after you became special counsel, you issued a subpoena for the phone records of the Speaker of the House of Representatives over a two-month period, along with for other senators and representatives, even though the public integrity section at DOJ cited litigation risk to doing this. What was that litigation risk?

SMITH: With respect to the toll record subpoenas that we issued. They were approved by the public integrity section. The public integrity section in approving those subpoenas noted the fact that the subpoenas were for records for people who were not targets of our investigation.

KILEY: But they said there was a litigation risk and you moved forward with it anyway. And not only that, but you also sought orders from judges, making it so those who were having their records seized would not know about it. And you even didn't tell those judges that it was members of Congress whose records you were going after, in apparent contravention of a federal statute saying that a telephone provider for a Senate office shall not be barred from providing notice that the records had been requested.

Now, if you sought to do that today, would you be able to get away with that, with asking the judges for a nondisclosure order without telling them these are members of Congress?

SMITH: When we secured these toll record subpoenas, it was done consistent with department policy. You're correct in that that policy has since changed.

KILEY: They changed the policy based upon the actions that you took. Similarly, you issued a gag order against President Trump that the D.C. Circuit Court of Appeals vacated as overbroad. Is that correct?

SMITH: Well, the D.C. Court of Appeals, in passing on that order, found that it was justified. They narrowed the order, but they confirmed that the phenomenon --

KILEY: They narrowed the order because it was overbroad. In addition to that, you sought an early trial date that the district court rejected. And when you presented your prosecution memo to Attorney General Garland, it's been reported that he was visibly unimpressed and expressed First Amendment concerns.

So, Mr. Smith, looking at the record, I see that you were reversed and rebuked by the Department of Justice itself, by the attorney general, by the Solicitor General, by multiple district court judges, by the Court of Appeals, and by the U.S. Supreme Court itself. So, my final question is, do you believe that you made any mistakes? Do you have any regrets as to how you conducted this investigation?

SMITH: If I have any regret, it would be not expressing enough appreciation for my staff who worked so hard in these investigations. We followed the facts and the law. These people who worked for me sacrificed endlessly and have endured way too much for just doing their job. So, if anything, I wish that I had thanked them.

KILEY: No mistakes. There's that humility. Mr. Chair, I yield back.

REP. JIM JORDAN (R-OH), CHAIRMAN, JUDICIARY COMMITTEE: Yes, the time of gentleman was right. The chair now recognizes Ranking Member --

[10:35:00]

REP. JAMIE RASKIN (D-MD), RANKING MEMBER, JUDICIARY COMMITTEE: Well, thank you, Mr. Chairman. And the good gentleman from California certainly knows, because he's a student of mine, that lawyers go to court, and sometimes they win motions, and sometimes they lose motions. And there's no crime in any of that. And I'm just sorry that you had to be lectured about humility and restraint by a politician, because we might not be best poised to lecture you on those particular virtues.

But let's go to the toll records, since that's been raised, Mr. Smith. First of all, Congress has allowed toll records to be subpoenaed. This committee has actually tried to limit it over the years, and the senators who are whining the most over on the Republican side in the Senate, they never went along with our determination to try to limit the government's ability to subpoena toll records. So, it's perfectly lawful what you did. Explain why did you want those toll records?

SMITH: We wanted to conduct a thorough investigation of the matters that was assigned to me, including attempts to interfere with a lawful transfer of power. The conspiracy that we were investigating, it was relevant to get toll records to understand the scope of that conspiracy, who they were seeking to coerce, who they were seeking to influence, who was seeking to help them.

RASKIN: And that's normal investigative practice, right?

SMITH: In conducting a criminal investigation, securing non-content toll records, as you described, is a common practice in almost any complex conspiracy.

RASKIN: OK. Let's go to something else that I've been hearing over the last week by our colleagues, as they've eagerly anticipated your arrival here. They've been saying that there's some kind of First Amendment defense that Donald Trump would have had to the crimes you indicted him for.

Is there a valid First Amendment defense to defrauding the public? Is there a valid First Amendment defense to disrupting a federal proceeding? Is there a valid First Amendment defense to violating the voting rights of the people and cheating the public out of a fair election?

SMITH: The First Amendment is something we took seriously in our investigation, but the First Amendment does not protect speech that facilitates a crime. Speech that is used to facilitate a crime, a fraud crime in particular, is not protected under the First Amendment. The Supreme Court precedent on that is clear. This is an issue that we litigated before the district court, and the district court ruled, as I just stated, that it is not in fact protected. RASKIN: And the case law is perfectly clear on this, right? All frauds are perpetrated by speech, right? All conspiracies are perpetrated by speech. So, just because your criminal conduct is brigaded with speech doesn't somehow mean you've got a First Amendment defense against trying to overthrow the government. I mean, the people who attacked the police officers on January 6th were chanting hang Mike Pence. I suppose that was political speech, or they were saying stop the steal. Does that mean they've got a First Amendment defense to violent assault against the officers?

SMITH: It does not.

RASKIN: William Barr, by the way, was somebody who was perfectly clear about that. The attorney, Donald Trump's own attorney general said, there's no freedom of speech that you have to engage in a conspiracy, to overthrow an election, to commit crime. He was perfectly clear about that. Back in those days, in fact, lots of people on that side of the aisle, including my good friend, the chairman, denounced the violence that took place on January 6th. The cat's got their tongue these days.

My friend Chairman Jordan said what happened last week was terrible, was tragic. It's as wrong as wrong can be, he said. Republicans, we know all political violence is wrong. I asked my friend Chairman Jordan at a rules hearing, are you also not interested in what happened to us on January 6th? He said, of course, everyone's interested in holding people accountable who did wrong. The FBI is doing that. The Justice Department is doing that, appropriately so. What do you think about the attack on the Department of Justice and the special counsel for doing your jobs?

SMITH: I think the attack is unjustified. I think the people who worked with me as career public servants are people, part of the reason I've been a prosecutor for so long is to work with people like that, not just the prosecutors in my office, but also the agents, FBI agents who are heroes, who have served their country not only as agents, but also overseas.

[10:40:00]

I think those attacks are unwarranted based on the facts, and I think that they have no basis in who we are as Americans, as a country. I don't see attacking people like that as anything appropriate.

RASKIN: Thank you. And Mr. Chairman, I yield back to you.

JORDAN: The gentleman yields back. Mr. Smith, is Cassidy Hutchinson a liar? She was their star witness, January 6th Committee, their star witness in one of those staged and choreographed hearings they paid the former president of ABC News to put together. She was in fact the only witness at this special primetime hearing, Tuesday, June 28, 2022, 9:00 in the evening. And she told some stories. I mean, these were some stories. She talked about the president lunged across the backseat, grabbed the steering wheel, tried to drive the car to the Capitol. And I just want to know, do you think she was lying? SMITH: Chairman Jordan, my assessment of that particular issue is that with respect to the testimony about someone, the president lunging towards the driver, my recollection of her testimony about that is that it was secondhand. She said she'd heard that from somebody.

JORDAN: You familiar with the name Tony Ornato?

SMITH: I'm sorry?

JORDAN: You familiar with the name Tony Ornato?

SMITH: Yes.

JORDAN: White House deputy chief of operations, deputy chief of staff for operations, right? You remember what he said about it?

SMITH: As I sit here right now, I do not.

JORDAN: Yes, he said it didn't happen. How about Bobby Engel? You familiar with that name?

SMITH: Yes, I am.

JORDAN: Secret service agent who was actually in the car that day. You know what he said? He said it didn't happen. And they both said the first time they ever heard this story was when Ms. Hutchinson testified in the primetime hearing as their star witness of the January 6th Committee. By the way, do you ever confirm her testimony about this particular incident?

SMITH: We conducted, as I said before, our own independent investigation of all aspects of the case that we thought was relevant. Attorneys from my office --

JORDAN: Did you ever confirm it? That's a simple question.

SMITH: We interviewed, I should say, attorneys in my office before --

JORDAN: Did you ever confirm the president leaping across the seat, grabbing the steering wheel, this whole concoction she brought up in the January 6th hearing? Did you ever confirm that?

SMITH: We interviewed another first-hand witness who was in the car who did not confirm that that had happened, but also --

JORDAN: In your deposition to the committee last month, Mr. Smith, you said this, my recollection with Ms. Hutchinson was a number of the things that she gave evidence on were secondhand hearsay. Do you remember making that statement to us last month in the deposition?

SMITH: I did, and I was referring particularly to what we're talking about now.

JORDAN: Yes, and you also said Ms. Hutchinson, regarding this particular claim, was a second or even third-hand witness. We asked you, if you were a defense attorney, how would you handle cross- examining her if she was on the witness stand, and you said, if I were a defense attorney and Ms. Hutchinson were a witness, the first thing I would do was seek to preclude her testimony because it was hearsay. You remember saying all that?

SMITH: Yes, that's correct, sir.

JORDAN: That's correct, right? Were you going to put her on the witness stand if you ever got to trial?

SMITH: We had not made final determinations as to who we were going to call as a witness. We had a large --

JORDAN: You were still considering her?

SMITH: We had a large choice of witnesses in this case.

JORDAN: Are you familiar with what Washington Post reporters Carol Leonnig and Aaron Davis said in their book? They did this book, 300- and-some pages book, on Chronicle and the whole investigation of the Justice Department, and here's what they said on page 310. They said, Jack Smith had wondered whether some of Hutchinson's claims might be relied upon at trial. Still, at one point, Smith told the elections team he wasn't ready to give up on Hutchinson's account. Ultimately, however, Trump administration officials uniformly, fiercely disputed her accounts under oath. Prosecutors on your team told Smith they wouldn't want to use Hutchinson as a witness in court, and Smith agreed. Are Carol Leonnig and Aaron Davis who wrote this, are they lying?

SMITH: My recollection is that I certainly had not made any final determinations about who we were going to call.

JORDAN: And that's the point. That is the point. The fact that they used her in a primetime hearing, and you won't rule out using her, didn't rule out using her, putting her on the witness stand when everybody knows she wasn't telling the truth, that says it all. That's the degree the left and Democrats were willing to go to get President Trump. Putting on the witness stand someone everybody knows is making it up. Everybody knows that.

[10:45:00]

And you were willing to do it. By the way, you know how many times Cassie Hutchinson was mentioned in their report, the January 6th report? Any idea, Mr. Smith?

SMITH: I do not.

JORDAN: 185 times. Someone that the whole country knows wasn't telling the truth, and you were still considering putting her on the witness stand because you had to get President Trump. And everybody can see that.

We better take a recess for votes. We will resume as soon as votes are over. Back here 10 minutes after, Mr. Smith, you guys can go back to the room that you were in.

PAMELA BROWN, CNN ANCHOR: All right. We've been listening to some exchanges there. You heard the chairman, Jim Jordan, of the House Judiciary Committee questioning Jack Smith along with other members of Congress. They're taking a quick break, but I want to put this into perspective, what we've heard so far.

And Jamie Gangel, I'll go back to you. We were starting, and then the hearing started. First of all, what is your takeaway from what we've heard so far?

JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: So, I don't think any of this is a surprise, just big picture. I think what's interesting here is really from a political perspective, the Republicans control the House. The Republicans have called this hearing. Be careful what you wish for.

At the end of the day, from a political perspective, the Republicans are bringing back January 6th and the classified documents back to the public. I think we all here have heard all of this, except from Jack Smith before. So, a lot of this has been in the public domain, but, you know, does Donald Trump really want to be relitigating this at this point in his presidency?

WOLF BLITZER, CNN ANCHOR: Laura Coates is with us as well. You've been listening very, very carefully. Most of this so far -- it's been about 40 minutes so far that this hearing has been going on, have been these Republican attacks against Jack Smith.

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: Not only the substance of what he was alleging through the grand jury indictments, but also about his personal character and professional credentials, which, you know, he was appointed to this position based on those credentials and the expectation he would be objective. But what I've noticed mostly here, too, is a lot of emphasis on these toll calls, the phone calls.

This has gotten under the bonnet of framework from Jim Jordan and beyond. Why is this so significant? Because as a part of his allegations that President Trump directed an angry mob and then capitalized on the violence by furthering it, by contacting, making phone calls, working the phones to try to continue it in some way rather than call on the National Guard, as he talked about even today, is the idea that he was investigating the people that Donald Trump chose to call.

And he said, had it been Democrats he called, I would have followed those people as well. Now, in a text messaging world, we think subpoenas mean that you've got everyone's phone calls and wiretapping. No, it means the existence of the call. It means the duration of the call and the callers themselves. But you can clearly see that this has really, really roused the suspicion and skepticism of Republicans on the Hill that believe that somehow, they would be viewed as complicit.

What I find most interesting about this entire hearing so far is the absence of regret by Jack Smith, who said today, in response to Congressman Kiley, his only regret is not having thanked his team more for their diligent work. That is really a subtle jab at the expectation that he somehow would be apologetic for what he says was doing his job.

BROWN: Yes. And he said he -- you know, he would do it again if he had the opportunity. In terms of the phone records, certainly it is controversial, right, to get phone records for members of Congress. But let us not forget, in Trump's first term, that happened with Eric Swalwell, the Democratic congressman, as well as Adam Schiff. So, we should note that.

Jim Jordan gave the opening statement. I want to play that and then get your reaction out of this, Elie.

(BEGIN VIDEO CLIP)

JORDAN: Democrats have been going after President Trump for 10 years, for a decade, and the country should never, ever forget what they did. Over the next few hours, we're going to hear a lot of yelling and screaming, I assume, from the other side, but we should never forget what took place, what they did to the guy we, the people, elected president twice.

(END VIDEO CLIP)

BLITZER: Elie Honig is with us as well. Elie, you wrote an excellent book going into a lot of this, but let's talk a little bit about what we just heard.

ELIE HONIG, CNN SENIOR LEGAL ANALYST AND FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK: I've got whiplash already from going from one side to the other. I mean, there is a stark difference in the way the Republicans and the Democrats have approached Jack Smith so far. As expected, as we just saw from Jim Jordan, Republicans are picking apart his investigation. They're pointing out the times when he failed or was rejected by judges, by various courts. And when he did things that are politically questionable. We knew that would happen.

[10:50:00]

Democrats, of course, are using Jack Smith to try the case that Jack Smith never got to try to a jury, right? Jack Smith wanted to try these cases. He wanted to try to show a jury's evidence about January 6 and about classified documents. Never got to do that.

The thing that surprises me so far, Jack Smith is on his heels here. That's been the tenor of this. I thought Jack Smith was going to be more aggressive. I thought Jamie Raskin, rather than responding to the negative pieces that Jim Jordan put out there, I thought Jamie Raskin was going to say, OK, Jack Smith, let's focus, though, on what your charges were. Let's focus on what Donald Trump did. Instead, he had Jack Smith sort of responding in deep legalese. Smith seems tentative. He's slow. He's non-responsive some of the times. And I'm surprised by that. This is an experienced, veteran, aggressive prosecutor. He's coming across on the defensive thus far. COATES: I don't agree. I'm going to just say it quite quickly. And that is because one of the things I know that Evan can describe as well, he is trying to distinguish himself from being a personal, invested party, and somebody who's speaking on behalf of the Department of Justice policies. You and I both know, when you stand up there, you are articulating the policy of the Department of Justice, not your personal viewpoints on a matter.

And so, I have found, when he has answered questions, that his lack of responsiveness has been not what they wanted him to say, but instead, which will never satisfy the court of public opinion, but instead addressing, well, these are my positions that were articulated by the Department of Justice in many respects. And so, I don't see him on his heels yet. He might very well be, and you might see it differently --

HONIG: Is he projecting as strong to you?

COATES: I think he's projecting as -- well, first of all, we know the banality of a government attorney. You're looking at him.

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: I will say this. I think the other thing -- the other factor that I think you're not accounting for is the fact that there is a perjury trap over this entire hearing. They are watching every single word, and he is, I think, weighing every single word because he has to be careful. He cannot diverge from his previous testimony. He did a deposition in December, and I think he's trying to be careful, and I think that's what you're seeing, the tentativeness at the beginning. I think it's pretty clear he's very comfortable with what he did, and he still believes that he would do it again.

BROWN: Right. And the backdrop is President Trump continuing to threaten to investigate him, the prosecutors, and I also -- I mean --

PEREZ: And Republicans are doing it, right?

BROWN: And Republicans are doing it. So, there's --

PEREZ: They're making referrals for how you answer your questions, right?

BROWN: Exactly. And I just -- you know, big picture here, look, Republicans are saying this was all about politics. Jack Smith, in his opening statement, said, I made my decisions without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election. He went on to say President Trump was charged because the evidence established that he willfully broke the very laws he took an oath to uphold.

So, I want to put that into focus now and present day because a lot of this is looking backwards, but President Trump continues to say the 2020 election was stolen. He just said it in Davos. He said it twice, and I think that that's relevant as we're in this moment and looking ahead to the midterm elections.

PEREZ: And that's one reason why Jack Smith and everyone associated with these cases, they've had to hire lawyers because there is a grand jury that is sitting in the Southern District of Florida that the Justice Department is trying to use to go after people who everyone, going back to 2016, you heard Jim Jordan outline exactly the case that they're trying to pursue, which is that there's been this grand conspiracy since 2016 going through 2024 to try to prevent Donald Trump from taking office, from being president.

And so, there's this long-distance work that is being done by the Justice Department. And I think Jack Smith knows that. He -- well, we know he knows that because he's had to hire lawyers and the president keeps pushing the Justice Department to do things more aggressively. He believes that they are not moving quickly enough to go after his enemies. And so, that's also the context.

The other thing I think we should recall, as you're watching the Republicans talk on this panel, there's a lot of amnesia. A lot of those members were very disturbed at what Donald Trump did on January 6th of 2021. They were very disturbed by what he didn't do, right, to try to stop the violence.

And so, in the aftermath of that, some of them provided testimony to express those concerns to Jack Smith's team, to the special counsel's office and to the investigation. And they want to erase that because they don't want people to remember where they were on this very issue because now that obviously Donald Trump is president again, everybody wants to forget that, especially on the Republicans.

COATES: I want to also point out, I mean, just you've mentioned amnesia, but let's not forget this point that when we're talking about Florida, we know that Judge Aileen Cannon has an existing order that says he cannot talk about the classified documents cases in a fulsome way, let alone even in a cursory way. And so, that order, I think, expires on February 24th. President Trump is trying to extend that as well.

[10:55:00]

So, I'm going to be looking for the catch-22s to your point of the perjury traps and beyond, or even a misstep, because that is part and parcel of every congressional hearing, as we unfortunately well know, because there is going to be the impression that will be laid that either he is reluctant to discuss it because you're going to assign some regret, or is it he's trying to fall in line with what the judge has ordered?

And we know there's some tension between what Judge Aileen Cannon ordered in the past and her overseeing of that case more broadly. So, I'll be looking for those catch-22s as I see different members of Congress try to assess his credibility.

HONIG: Yes. And to pick up on these points, there certainly are tactical issues to be taken with Jack Smith. I absolutely agree with Evan. There is zero basis to open a criminal investigation of Jack Smith. For all the criticisms that Jim Jordan just laid out, nothing is remotely criminal that Jack Smith did. And it is putting a damper on him, and he understandably is cautious about this. The other thing is, I expected to see more from Jamie Raskin, and maybe this will happen as the hearing proceeds, reminding the American public of January 6th. But if you look back at Jack Smith's responses to Jamie Raskin, they've all been minute, technical responses, nothing reminding us of what really went down that day, which may happen as we move forward.

BLITZER: All right. Everybody stand by. We have a lot more coming up. The committee is still in recess right now. Our special coverage will continue right after a quick break.

(COMMERCIAL BREAK)

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