Senate Judiciary Committee oversight hearing on Jack Smith - NBC 15

[0:00] You didn't have any decision on whether or not to bring the prosecution except after you were appointed. [0:05] Is that correct? [0:07] Yes. [0:09] And you had to do what any prosecutor has to do, and that is to make an exhaustive effort to accumulate the evidence [0:17] and come to a conclusion about whether you had probable cause to proceed to convict beyond a reasonable doubt. [0:24] Is that correct? [0:25] That's correct. [0:25] We sought to collect facts, look at the law, and make a decision. [0:28] All right, and the other point that I think is really disturbing my colleagues, and with some understandable basis, [0:35] as ranking member Durbin said, is getting the phone logs of members of Congress. [0:42] But as I understand your explanation, if you were doing an investigation that involved information that Rudy Giuliani called certain numbers, [0:53] you'd want to, and he was a suspect, and you had his own words talking about pressuring to delay the outcome of this election, [1:05] you're not going after me individually. [1:07] You just find out, you get, my number shows up in his call log. [1:13] So then that's how you get my number. [1:15] Is that correct? [1:16] Yes, in that we had an ample basis, in my view, evidentially, to seek these toll records [1:24] because they corroborated other information that we had from a variety of sources about this attempt [1:30] to exploit the violence of January 6th and furtherance of the conspiracy. [1:34] All right. [1:34] And I want to ask, you know, Senator Kennedy made a point about this, [1:37] and asserted that you might not have been taking that speech and debate course in constitutional law. [1:46] I took it. [1:48] But if I'm a witness, that has nothing to do with my speech and debate privileges. [1:52] Is that correct? [1:54] My understanding of the speech and debate clause, which is an important part of separation of powers, [2:00] is that it is meant to protect legislators from having their acts used against them [2:06] or being forced to compel testimony. [2:09] But the speech and debate clause doesn't in any way privilege a member of Congress, House, or Senate to commit a crime. [2:16] Correct. [2:19] Well, when you are looking at this effort, the decision was not made by you to appoint a special prosecutor, correct? [2:33] That's correct. [2:35] You were appointed special prosecutor. [2:38] Yes. [2:39] In the two areas where you proceeded was on documents that, in fact, were taken from Mar-a-Lago [2:48] that were classified documents and under the law classified documents cannot be removed, [2:54] even by a former president of the United States. [2:56] Is that correct? [2:58] I can't speak to aspects of the Florida case unless they're in an indictment or a filing. [3:03] I think the indictments and filings speak for themselves. [3:06] All right. [3:06] And then, we all know January 6th happened. [3:10] We all were here, or most of us were here. [3:14] It was an assault. [3:16] People were injured. [3:18] Property was desecrated. [3:19] And there was a determined effort to overturn that election. [3:23] And you proceeded on the basis of the facts that you found during your investigation. [3:28] Is that correct? [3:29] Yes, that's why and how we proceeded. [3:31] Okay. [3:32] Thank you. [3:32] Thank you very much, Mr. Smith. [3:34] I yield. [3:38] Thank you, Mr. Chairman. [3:40] Mr. Smith, you and I have never met, but your team wanted to know to whom I spoke, when I [3:48] spoke to them, and for how long. [3:52] You subpoenaed records associated with my phones, both personal and office, and you sought and [3:59] obtained a court order to prevent me from knowing about it. [4:02] For years, you were able to ask your questions in secret without me in the room. [4:11] Today, the Senate gets to ask questions. [4:14] And unlike you, we will do so in public. [4:16] You have insisted that politics played no role in your investigation. [4:23] The American people can judge for themselves. [4:28] Let's start with your subpoenas. [4:31] Did your team subpoena records concerning the Republican National Committee? [4:38] We subpoenaed a number of records. [4:40] That's a yes or no question. [4:43] I do not have, I just want to be clear with you, Senator, I do not have a recollection of [4:48] every subpoena. [4:49] We did subpoena numerous records. [4:51] Did your team subpoena the RNC? [4:53] I would have to look at those records, but we did. [4:55] You're testifying, you don't remember? [4:57] Yes, no, or I don't remember. [4:58] Those are your three options. [5:00] It is very possible. [5:01] I do not have a recollection of every- [5:02] Okay, did your team subpoena Turning Point USA? [5:07] Again, I would have to look at the records. [5:08] Do you have any idea who you subpoenaed? [5:10] Can you name- [5:11] All right, let me help you. [5:14] Did your team subpoena the Conservative Partnership Institute? [5:18] That I do remember, yes. [5:20] Okay, good. [5:20] We found one. [5:21] And I can explain why. [5:22] Did your subpoenas demand communications with Fox News? [5:28] The subpoenas that we issued did ask for communication regarding ad buys because it was relevant [5:35] to the false statements we were investigating. [5:37] So purchasing advertising on a news agency you somehow believe is criminal. [5:41] Did your team seek and obtained donor and fundraising data? [5:47] I would have to look at the subpoenas, but again, I'm happy to- [5:50] You don't know if you had donor and fundraising data? [5:53] I'm happy to explain why we issued these subpoenas. [5:56] Do you know if you had donor and fundraising data? [5:58] I would have to look at the subpoenas. [5:59] You don't know? [6:01] Are you testifying right now you don't know if you obtained donor and fundraising data? [6:09] You can sigh all you like. [6:10] It's a very simple question. [6:11] You know damn well you did. [6:12] You've been questioned about the checks that you guys got. [6:16] You know the answer. [6:18] So why don't you answer the question? [6:21] Did your team obtain donor and fundraising information? [6:25] It's a yes. [6:25] You can say yes. [6:28] I do not recall the attachments to specific subpoenas. [6:32] I'm happy to explain why- [6:32] So you're testifying. [6:34] You're testifying. [6:34] You don't remember if you got donor and fundraising material? [6:37] Really? [6:40] I do not recall because I have not seen those subpoenas in a very long time, but I'm happy- [6:45] All in all, you issued- [6:47] Look, look, I get you want to dance and avoid the questions. [6:50] I understand it because you can't answer a simple, straightforward question. [6:53] All in all, you issued 197 subpoenas to 34 individuals at least and 163 businesses, [6:59] and you sought records on at least 430 Republican individuals. [7:04] Is that right? [7:05] Remember, is that correct? [7:08] I do not recall those numbers. [7:10] I understand. [7:11] You know, if you look at the list, there is one thing that is consistent. [7:16] Every name on it is a Republican. [7:19] Is it your view? [7:19] Is it a crime to be a Republican? [7:22] Absolutely not, sir. [7:24] Is it a crime to write a check to Republicans? [7:27] It is not, and I'm happy to explain why we issued these subpoenas, if you'd like. [7:33] Sure, briefly. [7:33] We had to conduct an investigation about whether any person or entity violated the law with [7:41] respect to the attempt to block the peaceful transfer of power. [7:45] To make that decision- [7:46] Yes, I understand, and you used that as an excuse to engage in a massive fishing expedition [7:51] targeting over 400 Republicans, and it was disgraceful. [7:54] Let's just talk about the United States Senate. [7:58] You issued subpoenas for more than 20% of the Republicans in the Senate seeking their [8:04] phone records. [8:05] You did so, and then you obtained orders, non-disclosure orders from Judge Boesburg. [8:16] I believe Judge Boesburg should be impeached for his complicity in your abuse of power. [8:22] Now, Judge Boesburg signed orders, and I want to read from the order Judge Boesburg signed [8:27] that I didn't know about, that the Republican senators targeted here didn't know about. [8:32] I want to read from the order. [8:34] Quote, the court finds reasonable grounds to believe such disclosure. [8:42] In other words, disclosing to me that you were subpoenaing my phone records will result in [8:48] destruction of or tampering with evidence, intimidation of potential witnesses, and serious [8:53] jeopardy to the investigation. [8:55] Mr. Smith, do you have any evidence whatsoever to believe that I and 20% of the members of [9:01] the Republicans in the Senate will engage in destruction or tampering of evidence and intimidation [9:08] of potential witnesses? [9:09] No. [9:11] We had powerful evidence that Donald Trump and his associates were- [9:14] Am I Donald Trump? [9:16] You are not, sir. [9:17] Are the members of the Senate Donald Trump? [9:20] No. [9:21] Was this order directed at Donald Trump? [9:24] No. [9:24] Did your office draft this order that Judge Boesburg signed, and he signed them like he [9:29] was signing Denny's menus, one at a time, over and over and over again, facts be damned. [9:34] Did your office draft this? [9:38] I'd have to look, but I'm assuming that's the correct order, and if so, we did, and I'm [9:42] happy to explain why we did, if you'd like. [9:44] Good. [9:44] I want you to tell us right now, are you an officer of the court? [9:48] Yes. [9:49] I want to tell us, did you have a shred of evidence that 20% of the Republicans in the [9:57] Senate will destroy evidence and intimidate witnesses? [10:02] We had a strong reason to believe that Donald Trump would destroy evidence- [10:07] That was not directed at Donald Trump. [10:09] It was stated disclosing it to members of the Senate. [10:12] No, it was stated disclosing it to anyone, and we do not have to wait for someone to be [10:19] injured, for an investigation to be obstructed. [10:22] We had strong reason to believe that Donald Trump would obstruct our investigation, given [10:28] the obstruction alleged in the Florida indictment, given the attempts to intimidate witnesses [10:34] in the election case, given the threats that were later made to witnesses in the election [10:39] case. [10:40] I, as a prosecutor, have a duty- [10:41] Mr. Smith, are you aware of the statute to USC, Section 6628? [10:48] Yes, I am. [10:48] That specifically protects Senate communication records and makes this non-disclosure agreement [10:56] that you gave Judge Boesberg and that he signed that makes it illegal. [11:00] Were you aware of it at the time? [11:04] I do not recall discussing this statute at the time. [11:07] Did you bring it to the judge's attention? [11:11] I do not recall this being part of our application. [11:15] So instead, you gave the judge an order that was contrary to federal law, and you got the [11:20] judge to sign order after order after order that was contrary to federal law. [11:24] Is that right? [11:26] No. [11:26] We sought to follow department policy and the law at all times. [11:29] Excuse me. [11:30] Does department policy contravene federal statute? [11:34] It does not. [11:35] And we intended to follow them both. [11:37] We submitted these non-disclosure orders consistent with the law and department policy. [11:42] By the way, when you sought my phone records from AT&T, a number of senators had their phone [11:54] records with Verizon. [11:55] Verizon, unfortunately, was more than happy to comply. [11:59] AT&T declined to hand over my phone records because they concluded doing so would be unconstitutional. [12:06] It would violate the speech and debate clause. [12:09] Now, ordinarily, when a prosecution seeks and issues a subpoena and the individual receiving [12:17] the subpoena refuses to turn it over, ordinarily, the prosecution goes to court to enforce that. [12:21] Is that right? [12:25] I do not believe that's what happened in this case, sir. [12:28] In this case, you didn't do a damn thing because AT&T didn't hand it over because they [12:31] concluded it violated the speech and debate clause. [12:33] And you know what your team said? [12:35] Never mind. [12:36] Nothing to see here. [12:36] We're not going to fight because you knew if you went to court, you would lose. [12:39] Our work and our securing these subpoenas and nondisclosure orders was consistent with [12:49] the law. [12:50] The toll records were approved. [12:51] It was explicitly contrary to federal statute. [12:54] It was explicitly contrary to the federal constitution. [12:57] Let me ask you this. [13:00] Do you have any regrets? [13:04] Regrets regarding my work as special counsel? [13:07] Yes. [13:08] I regret that the people I worked with have been unfairly fired and vilified for doing [13:15] their jobs. [13:15] Of course. [13:15] Of course. [13:16] You can't bring yourself. [13:17] Well, let me say congratulations, because you have succeeded where Richard Nixon failed, [13:24] which is weaponizing the Department of Justice and the federal government to go after your [13:28] political opponents. [13:30] Congratulations. [13:31] You are stepping into the shoes of John Mitchell, and yet your abuse is far greater than John [13:37] Mitchell. [13:38] And I understand for the rest of your life, you're going to be hailed as a hero in the [13:43] resistance movement. [13:44] I assume you have a pink hat somewhere at home, and people will be proud of you for resisting. [13:52] But I'll tell you what you have done. [13:55] You have brought the Department of Justice into disrepute, because instead of being apolitical, [14:03] instead of enforcing the law, you willingly were conscripted as a foot soldier for the DNC. [14:08] And you know what you also did? [14:12] You reelected President Donald Trump, because the American people were disgusted at your [14:18] willingness to abuse power in partisan ends. [14:26] Javert from Les Mis would look at you with astonishment. [14:33] I believe you have no regrets. [14:35] I believe you have convinced yourself that this witch hunt targeting half the country [14:40] for partisan ends was justified. [14:42] Well, let me say, you have brought the Department of Justice into disrepute, and you have done [14:50] enormous damage. [14:51] And I believe your conduct represents the most egregious abuse of power in the history of [15:02] the Department of Justice. [15:10] I'm assuming it's my turn. [15:16] The chairman has not deferred to me. [15:18] My colleague goes almost two minutes over time quoting Javert and Les Mis. [15:23] Let me get back to what the reality of the American people and what they're witnessing [15:26] right now. [15:27] This is gaslighting the American people. [15:31] It has been going on for eight years, 30 days before an election when people are demanding [15:36] their gas prices go down. [15:39] We've got a whole lot of hot wind energy and gaslighting continuing to perpetuate the big [15:47] lie in America that Donald Trump was somehow cheated out of the 2020 election. [15:54] We are using precious time of one of the most vaunted committees in American history, the [15:59] Judiciary Committee, to perpetrate one of the biggest gaslighting attempts we have ever [16:05] seen in our 250 years as a country, that somehow Donald Trump won the 2020 election. [16:11] And when he didn't satisfy, wasn't satisfied with his loss, he then tried to cheat. [16:19] We all know it. [16:20] This is not shocking evidence. [16:22] He called Republicans in Georgia and said, find me over 11,000 votes. [16:26] He called members of Congress openly and asked them to find some way to have a peaceful [16:32] transfer of power. [16:33] And then Donald Trump incited people to attack this Capitol. [16:37] In his impeachment trial, seven Republicans said he did. [16:43] And so here we are when the American people are suffering, high gas prices, high grocery [16:48] prices, high fuel prices, and we're dragging an American, not a partisan, but a prosecutor [16:55] here to try to perpetrate this lie. [16:59] And I'd say this to my ranking member here, every person who they bring through to be confirmed [17:06] for a position, asked over and over again, did Donald Trump win the 2020 election, refuses [17:12] to say the truth. [17:15] This is an eight-year attempt to lie to the American people. [17:18] And this is their closing argument, everybody. [17:21] Right before an election, this is what they want to spend their time on, perpetrating a lie. [17:28] This committee's Republicans are more concerned with Trump than the truth, more concerned [17:35] with Trump's crimes than the Constitution. [17:38] And I'm watching today. [17:40] People say, oh, this is an unprecedented investigation. [17:43] This man did unprecedented things. [17:45] Heck yeah, he did unprecedented things. [17:48] Because when has the United States of America seen people storm the Capitol and try to stop [17:54] the peaceful transfer of power, beating Capitol police officers nearly to death? [18:01] Brian Sicknick died days after his savage beating. [18:04] This is ridiculous that this is what we're spending the American people's time with when [18:10] everyone is concerned about Donald Trump taking away their health care, Donald Trump's war in [18:15] the Middle East, Donald Trump's chaotic tariffs. [18:17] And you have to sit here and hire security for your family because they're whipping you into [18:23] their conspiracy theories and demanding that this is what the American people focus on. [18:29] This is utterly ridiculous. [18:31] I am so upset that they're fealty as to Donald Trump and not the Constitution. [18:37] I am so sorry that they're attempting to put investigators on trial while ignoring the extraordinary [18:45] conduct they are duty-bound to really investigate. [18:48] We who were here on January 6th, remember, Republican and Democrats were here. [18:56] We were evacuated. [18:57] We were evacuated. [18:58] I saw some of my colleagues running for their safety. [19:01] The Vice President of the United States was they were chanting for his death. [19:05] They were putting gallows out there. [19:07] Police officers lost all of this to stop the peaceful transfer of power. [19:15] And now this committee has not done what we should be doing, which is investigating the crimes. [19:21] And yet we're putting on trial the investigators. [19:24] Well, here I want to say it once and for all. [19:27] Donald Trump lost the 2020 election, everybody, and he criminally found by two grand juries. [19:36] He criminally was charged for trying to obstruct that election. [19:41] That shouldn't be shocking news. [19:43] That's historical fact. [19:45] His own Justice Department told him there was no evidence of widespread fraud sufficient to change the outcome. [19:54] His own campaign lost over and over again in court. [19:57] And yet he continued. [19:59] He pressured state officials. [20:01] He asked Georgia's Republican secretary to find those 11,000-plus votes. [20:05] His allies organized fraudulent electors in seven states. [20:10] He pressured his own Justice Department. [20:12] He pressured his vice president. [20:14] And on January 6th, he created one of the worst crimes an American has ever committed against his own nation, [20:22] inciting people to storm the Capitol. [20:28] And minutes later, while our Capitol was under attack, Republicans and Democrats running for his life, [20:33] Donald Trump was attempting to reach senators as a part of that delay in certification. [20:40] That is part of a criminal investigation that understandably should be looked at. [20:45] Think about that. [20:47] The Capitol is under attack. [20:49] Members are fleeing for their lives. [20:51] The vice president is being rushed to safety. [20:53] And the president of the United States is still working the phones in an effort to stop the peaceful transfer of power. [21:00] You all know what happened with Kevin McCarthy. [21:02] The Republican leader of the House calls the president, begs him, call off the mob. [21:08] Please call off the mob. [21:09] And according to the evidence that you uncovered, Donald Trump's response? [21:14] Well, Kevin, I guess the people are more upset about the election than you are. [21:18] Hours more still pass. [21:21] And even after all that, Rudy Giuliani is still calling senators asking them to slow down the certification. [21:31] Mr. Smith, I'm sorry. [21:34] I want to be clear about this. [21:36] What you are investigating is not something trivial. [21:39] It's not a smash and grab crime. [21:41] It is the biggest assault on our democratic traditions in over a century. [21:48] And the danger that it unleashed. [21:55] People call it election interference or obstruction. [22:01] They use legal terminology. [22:03] But people were in danger. [22:05] Lives were lost. [22:06] The vice president barely escaped for his life. [22:09] Members of Congress almost were physically assaulted. [22:11] And your report concluded that the violence was foreseeable because of Donald Trump and what he was doing. [22:18] That it benefited from his interference with the certification. [22:22] He incited the violence. [22:23] He made a conscious decision not to stop and instead sought to leverage it for further delay. [22:28] That's an accurate description of what your investigation found, correct? [22:32] We found that he caused that violence, that it was foreseeable to him, and that he sought to exploit it. [22:40] Oh, my gosh. [22:41] An investigator who relied principally on Republicans in his investigation. [22:48] He's testified before this committee. [22:50] It was Republicans. [22:51] Oh, my gosh. [22:52] That statement should be chilling to every American that the commander in chief currently did everything he could to undermine the legal transfer of power. [23:02] Incited a riot, which several Republicans said he did. [23:07] And we're now persecuting the prosecutors who followed the evidence. [23:16] And they're trying to say this is partisanship. [23:18] My records were swept up. [23:20] My text messages were part of it. [23:22] Karen Bass's text messages were a part of it. [23:24] And, dear God, one of the greatest attempts to undermine our democracy since the Confederates betrayed this nation and started the Civil War. [23:34] That's what this was. [23:36] And the noble police officers who stood in the gap before a mob were savagely beaten have been pardoned. [23:44] People who savagely beat police officers were pardoned. [23:49] And what has happened to the career prosecutors, the career FBI agents that did their job, that followed the evidence? [23:56] Mr. Smith, what's happened to them? [23:58] They've been fired unlawfully. [24:02] They've been publicly vilified and they've been attacked in every possible way. [24:07] It is inconceivable to me how you can pardon people who assault law enforcement officers and then vilify the officers who are trying to uphold the rule of law. [24:17] Sir, thank you. [24:19] They have been thrown into the fire. [24:21] Americans, prosecutors, FBI agents who were investigating the savage beating of police officers were fired, fired. [24:34] Their testimony is shocking. [24:37] But the people like you who stood up, it's not just losing jobs. [24:43] You're thrown into this hate machine that is making you and your families not even safe to go to the grocery store right now as we are having a hearing pushing this false narrative that somehow Donald Trump is the victim. [25:00] That the poor president of the United States, who's grifting right now off of his office to the tune of billions of dollars, whose whole family has been enriched in unconscionable ways, while Americans get poorer and sicker, while Americans lose their health insurance, see their gas prices go off, the president and his family are richer than they've ever been. [25:25] And they're saying they've been victimized by you and the other prosecutors and investigators who've been fired from their office and vilified so much that they have to get security for their families. [25:37] This big lie has gone on enough. [25:40] We have people who are serving at the highest offices in the land that repeat the big lie. [25:47] We have people running for office in the Republican Party that can't even tell the truth. [25:52] And today's farce, today's gaslighting, today's mendacity, perfidity, lies, mistruths cannot obscure what the mountain of evidence an American saw with their own eyes. [26:10] Donald Trump's own national security team from his first administration said clearly in statement after statement, people that served with him, cabinet secretaries, said he's a danger to this nation and our nation's national security. [26:22] And now he's back in that office using the power of the office to go after good Americans, many of whom are Republicans, who dare to tell the truth, who dare to investigate criminal acts, [26:33] who dare to say it is not usual in the greatest democracy in the world to have violence be done to stop the peaceful transfer of power. [26:40] No, sir, I cannot sit here and let your reputation further be besmirched, more lies being hurled at you, being called names with false evidence before our eyes. [26:51] This is unfair to you. It's unfair to your family. [26:55] But you know what? You're not what most matters. [26:58] What most matters is that this is unfair to the American people. [27:02] There are families all over America who are struggling and suffering and saying maybe there's somebody in Congress that will stick up for me. [27:08] I'm tired of the politics, they're saying. I'm tired of the lies. [27:12] Maybe there's somebody in America that will stick up for me and help me with my gas prices and help me with my lack of insurance and help me with the too high expenses for childcare and help me with an American dream that's slipping away. [27:25] But no, what does the Republicans in control of Congress do with their closing statement before an election? [27:30] They carry out the big lie. [27:32] They persecute prosecutors. [27:34] They do Trump's bidding. [27:36] They choose Trump over truth, corruption and crimes over the Constitution. [27:41] And I've had enough of it. [27:43] This could this this hearing is a farce. [27:46] And I'm sorry for what you and your family are enduring as a result. [27:49] Thank you. [27:50] Senator Grassley had to leave either battery quit. [28:02] I'm not sure which. [28:03] But I'm sure I'm told he's coming back. [28:07] Yes. [28:12] OK. [28:13] So I guess I'm in charge and I'm going to call on Senator Graham. [28:18] But then I've got to leave. [28:21] So when I leave, you will be in charge. [28:25] OK. [28:26] Thank you, Senator Kennedy. [28:32] Much has already been said today about the abuses of the Justice Department under President Biden and Attorney General Merrick Garland. [28:41] But I think it's worth reminding people at home while we're here today and why Chairman Grassley has called this hearing. [28:48] The Arctic Frost investigation was a politically motivated witch hunt. [28:54] It violated the law. [28:58] And during the course of the investigation, the Department of Justice was weaponized to go after President Trump in the midst of his successful 2024 presidential election. [29:10] But this was not only about a witch hunt targeting the president. [29:16] Your weaponization also reached into the United States Senate. [29:21] In May 2023, your office secured a subpoena for the phone records of my brother, Lindsey. [29:29] You received his official government phone records and his personal phone records, including data on all the calls he made and received on those two phones in early January 2021. [29:44] Including, I might add, calls he made and received from me. [29:52] At that time, he was a sitting United States Senator from South Carolina and the chairman of this very committee. [30:01] It was Lindsey's job to cast a vote on whether to certify the 2020 election. [30:06] And as a chairman of the Senate Judiciary Committee, he was the one responsible for investigating whether that election had been tampered with. [30:14] But that didn't stop you. [30:17] Not only did you request Lindsey's and several other members' phone records, you asked Judge Jeb Bosberg to issue a gag order to make sure Lindsey didn't find out what you were doing. [30:28] Judge Bosberg rubber stamped your gag order to Lindsey's cell phone carrier, Verizon. [30:33] Verizon complied with the order and did not tell the Senate or Lindsey about the subpoena, even though Verizon's contract was with the Senate required, contract with the Senate required Verizon to notify the Senate Sergeant at Arms. [30:47] Chairman Grassley has pointed out that federal law does not let a carrier be barred from notifying a Senate office unless the member is the target of the investigation, which you never claimed Lindsey was. [31:01] Nevertheless, the Senate Sergeant at Arms never received that notice. [31:07] Lindsey was kept in the dark, as were several senators you targeted. [31:12] And I think every member of this committee, Republican and Democrat, should be mad as hell about that. [31:20] I want to talk a little bit more about this gag order because I think this is something that every American, no matter how you vote or who you support, needs to hear. [31:30] The gag order that you requested to hide your tracks says, quote, the court finds reasonable grounds to believe that such disclosure will result in destruction of or tampering with evidence, intimidation of potential witnesses and serious jeopardy to the investigation. [31:53] End quote. [31:55] End quote. [31:57] The quote, reasonable grounds came from you. [32:01] You alleged to a federal judge that my brother, Lindsey, a patriot who had dedicated over 30 years of his life wearing the uniform of his country in the United States Air Force, a sitting United States Senator and a chairman of this very committee had the potential to destroy evidence, intimidate witnesses. [32:24] And cause serious jeopardy to your sham of an investigation. [32:30] In fact, in a separate gag order, you listed flight risk as a reason for obtaining a gag order for the Speaker of the House, a constitutional officer second in the presidential line of succession. [32:45] And let me point out something for everyone. [32:48] This subpoena wasn't being was being sent to Verizon for records that Verizon had in their own possession. [32:55] How the hell was Lindsey going to tamper with evidence he didn't even have in his possession? [33:02] How was a member of Congress a flight risk? [33:08] The legal term for your behavior would be obstruction of justice. [33:12] But in South Carolina, we just call it a lie. [33:16] This was undeniably a fishing expedition expedition by you and your team to intimidate the president's allies in Congress. [33:26] How do you know this? [33:29] How do we know this? [33:30] Because you didn't just send Verizon a subpoena and a gag order. [33:34] You also sent one to AT&T for Senator Cruz's records. [33:38] But unlike Verizon, AT&T pushed back. [33:41] They asked you to explain how this request was in compliance with the Constitution. [33:46] And you didn't have an answer. [33:48] In fact, you didn't even respond. [33:50] And you never followed up with AT&T because you knew what you were doing was wrong. [33:56] It doesn't make sense unless the only motivation you had was to take down President Trump and his allies one by one before the election. [34:12] So, Mr. Smith, do you really believe that Lindsey was going to destroy evidence that was not even in his possession? [34:20] No, I believe your brother was a patriotic public servant. [34:27] He was not a target of our investigation. [34:30] And in fact, he likely would have been a witness in our case. [34:33] Your brother investigated the claims that Donald Trump was making. [34:39] He found them to be false. [34:41] He said so on the House floor. [34:42] Well, I have another question. [34:43] He testified. [34:44] Then why does the gag order say that disclosure of the subpoena would result in destruction of or tampering with evidence? [34:52] Because disclosure of that subpoena could result in Donald Trump attempting to intimidate witnesses as he had before and after. [35:01] We had an ample basis for that. [35:02] The evidence in question belonged to Lindsey and was in the possession of Verizon. [35:07] It makes absolutely no sense that anyone would be able to destroy the evidence you are seeking. [35:17] Do you know what I think? [35:20] I think you were just trying to bully my brother and other allies of President Trump. [35:25] You caused my brother and a lot of other senators a lot of stress. [35:32] And that makes me sick. [35:34] You should be ashamed of yourself. [35:40] It's also a damn shame that you weaponized our legal system to do this. [35:48] To go after a political opponent and his allies, including Lindsey. [35:55] What a disgrace to our justice system and the Constitution that you would stoop this low. [36:02] Shame on you. [36:06] I yield back the remainder of my time and call on Senator Schiff. [36:13] Madam Chair, before you recognize Senator Schiff, I'd like to make a unanimous consent request to introduce into the record two letters from the Department of Justice [36:22] outlining the parameters of the witnesses' testimony today. [36:25] One dated September 14, 2026, and the other September 27, 2026. [36:31] Without objection. [36:33] Thank you, Madam Chair. [36:35] Mr. Smith, thank you for coming to testify today. [36:39] I'm sorry that you have been so villainized and attacked today. [36:44] I want to point out, though, what we've heard. [36:47] And I've sat through almost every minute of this hearing. [36:49] What we've heard and what we haven't heard from my colleagues across the aisle. [36:53] They have attacked you repeatedly, aggressively, inappropriately, scandalously. [37:00] But none of them have contested what took place on this day. [37:07] None of them had said there was no attack on January 6th. [37:12] None of them have tried to deny the assault on the police officers. [37:17] None of them have even suggested the President wasn't involved. [37:21] None of them have contested any of these things. [37:24] No, they've attacked you because they don't want to address the facts. [37:29] They don't want to talk about this. [37:31] They would rather attack you. [37:33] And just to level set here, for all of the outrage of my colleagues over your requesting toll records, [37:40] because Rudy Giuliani and other co-conspirators were calling some of the members of this body, [37:47] for all of the outrage over that, I should let you know, because you may not be aware of this, [37:53] the Bar Justice Department sought toll records from members of Congress. [37:57] Not a peep from my colleagues about that, but that involved toll records of Democrats. [38:03] That apparently was okay. [38:05] That apparently doesn't violate speech and debate. [38:08] And just to level set a little further, I want to tell you what my colleagues here have had to say [38:14] about an attempt to indict two of their Senate colleagues and four of their House colleagues [38:23] for making a video that said that the military does not have to carry out an illegal order, [38:32] a plain statement of fact, law, and constitution. [38:35] Not a peep about the fact that they were not just targeted, they were sought to be indicted. [38:42] This Justice Department went before a grand jury and sought to indict them. [38:48] And you're probably familiar with what happened in that grand jury. [38:51] That is, not a single grand juror would agree to return the indictment. [38:55] Has that ever happened to you, Mr. Smith? [38:58] Have you ever gone before a grand jury and had not a single grand juror refuse to return an indictment? [39:03] No. [39:04] I was a prosecutor almost six years. I've never even heard of such a thing. [39:09] But that, they don't care about. [39:12] That was Democrats who the department sought to indict. [39:16] So they don't contest the facts on January 6th. [39:20] They don't contest. [39:21] And let me just go through a couple of facts. [39:23] January 2nd, 2021, days before the election results were certified in Georgia, [39:29] Trump calls the Republican Secretary of State, Brad Raffensperger, [39:33] and presses him to find 11,780 votes. [39:38] Just enough votes to overtake Joe Biden by a single vote. [39:42] What do my Republican colleagues have to say about that? [39:45] Do they say, oh, Trump never did that? [39:49] Did you ever hear one of my colleagues make that claim today? [39:51] No. [39:53] None of them denied the president called and pressured the Georgia Secretary to find votes that don't exist? [39:58] Did you hear any of them make that argument? [40:00] No. [40:02] And of course, that's on tape. [40:03] It'd be very difficult to contest that. [40:06] He also said, so what are we going to do here, folks? [40:10] This is Trump on the phone. [40:11] I only need 11,000 votes. [40:13] Fellas, I need 11,000 votes. [40:15] Give me a break. [40:16] Did you hear any of my Republican colleagues say that that never took place? [40:20] No. [40:23] They don't contest those facts. [40:25] How about this with respect to the Mar-a-Lago? [40:29] Well, actually, with respect to January 6th, Trump calls top DOJ officials December 27th, [40:37] 2020, Acting Attorney General Jeffrey Rosen, Acting Deputy Attorney General Richard Donohue. [40:43] And in that 90-minute phone call, Trump complains the election was stolen from him, even after DOJ officials repeatedly rebut his claims. [40:53] And A.G. Rosen says, understand the DOJ can't and won't snap its fingers and change the outcome of the election. [41:01] It doesn't work that way. [41:03] The president, Donald Trump, replies, I don't expect you to do that. [41:08] Just say the election was corrupt and leave the rest to me and the Republican congressman. [41:16] Did you hear any of my Republican colleagues contest those facts? [41:22] No. [41:23] Did you hear any of them say, oh, Donald Trump never tried to pressure the Justice Department to make stuff up about the 2020 election? [41:29] Did you hear them make that argument? [41:31] No. [41:32] You heard them attack you a lot, right? [41:35] I did, but I'm not really concerned about that. [41:38] It's much more important that the public servants who I work with, that we stop vilifying public servants. [41:44] I don't care so much about me. [41:45] Well, I agree with you completely. [41:48] I mean, I've seen how they've been vilified. [41:49] I heard Kash Patel sitting where you're saying, sitting where you're sitting, make the plainly false argument that none of the agents who work for you were fired for working on the investigation of Donald Trump. [42:02] He actually made that claim. [42:04] That is just patently absurd. [42:07] And there will be a time when he will face consequences for making claims like that under oath. [42:15] But let me ask you this. [42:17] For all of the hyperventilation we heard today on the other side of the aisle, if this committee really wanted to know the facts, for example, about the storage of all the Mar-a-Lago classified documents. [42:33] Now, can we see an image of the Mar-a-Lago documents? [42:36] Wouldn't they want to see volume two of your report if they wanted to know the facts? [42:42] Wouldn't that report shed light on the facts of the president's sequestering all these documents in the bathroom at Mar-a-Lago? [42:48] I want to make sure I'm in compliance with Judge Cannon's order, so I'm not going to speak about anything that would even imply what's in that report. [42:56] Let me ask you about this procedurally then. [42:58] The Justice Department, prior to Donald Trump becoming president, wanted volume two of your report released. [43:04] Did they not? [43:05] The Justice Department, I believe, released volume one. [43:10] That's correct. [43:11] I'm talking about volume two. [43:12] They also wanted to release volume two. [43:14] Did they not? [43:15] You know, honestly, I submitted these reports under the special counsel regulations and I left the Justice Department immediately thereafter. [43:25] That was the position of the Department of Justice prior to the new crowd coming in under Donald Trump. [43:32] The new crowd under Donald Trump, former criminal defense lawyers for Donald Trump, changed their position. [43:38] They would no longer advocate for the release of your report. [43:41] I would think if our chairman and our Republican colleagues really wanted to get to the facts, they'd want to see that report. [43:50] The chairman and ranking member together have the power to subpoena that report. [43:54] I'm going to make a motion in our next business meeting that calls for a subpoena to subpoena your report. [44:01] We should see it. [44:02] The country should see it. [44:03] Those cases have been dismissed. [44:05] There's no prejudice to any ongoing prosecution. [44:08] They want to see the facts. [44:11] Let's show them the facts. [44:12] But they don't want to see the facts. [44:14] They could have asked for your report. [44:15] They don't want to see your report. [44:16] They don't want the country to see your report. [44:17] No, they want to come in here today and call you a dirtbag. [44:20] Because that means they don't have to confront any of the evidence you produced. [44:28] And you made a point earlier that I want to underscore because I sat on the January 6th committee. [44:33] What made those hearings powerful? [44:36] What made your investigation powerful? [44:38] The reason grand jurors, among others, indicted the president is because the witnesses were almost all Republicans. [44:47] It wasn't a partisan thing. [44:50] The witnesses spoke about the crimes the president committed. [44:55] And my colleagues on the other side of the aisle would have the country believe that, well, because Donald Trump was indicted in two separate cases, something unprecedented in history, then you must believe that the prosecutions were improper. [45:12] Well, that's one explanation. [45:15] It's the wrong explanation. [45:16] It could also be this is the first president in history who has repeatedly broken the law and the first president ever to incite an insurrection in an attempt to stop the peaceful transfer of power. [45:32] It is the first president who has tried to obstruct an investigation into the withholding of boxes and boxes of classified materials. [45:44] So I want to thank you again for your service to the country. [45:50] I want to thank you for the service of every member of your team on behalf of one representative of the federal government. [45:59] I want to apologize for the deplorable treatment that your team has received from this Congress and from this government for all the death threats they've received for their improper firing for the burdens placed on their families. [46:16] Well, my colleagues talked about the stress on members of having their toll records requested as witnesses, not even targets. [46:24] Well, what about the death threats that your team is receiving, that you've received? [46:31] And so I thank you for taking on this challenge. [46:33] I thank you for your willingness to testify, your eagerness to testify. [46:36] I hope that we can let the country see your work product and see the release of the second volume of your report. [46:47] You can't testify about that today because you know, [46:51] Judge Cannon doesn't want you to. [46:53] Her decisions have just bent over backwards to do service for the president. [46:57] And because this committee doesn't want you to. [47:00] And this Justice Department won't give you guidance about what you can even say today because they don't want you to. [47:06] They want you to have to fear they will come after you if you testify about the volumes of evidence that you have acquired. [47:15] So thank you for your service to the country. [47:19] And I'm sorry you have been treated with such shabby ad hominem attacks. [47:26] You deserve better. [47:27] And so do the American people. [47:28] I yield back. [47:29] On behalf of the chair, I recognize myself. [47:32] Mr. Smith, thank you for being here. [47:35] The one thing that I just want to observe where I may be a bit of an odd duck in this committee is I've got very few skills, but a good memory is one of them. [47:48] And I think it's fascinating how people want to pick up the mantle of vindictive prosecution or whatever else when their guy's not in office. [47:57] But I was just going back through AI as we were when you were after you finished your opening statement saying give me three examples where there was general consensus that there was a vindictive prosecution going on dating back to Obama one. [48:14] Every single one of them we had, whether it was Lois Lerner and what the IRS was doing or crossfire hurricane. [48:22] Judicial or prosecutorial misconduct is something that's always going on. [48:27] So I find it interesting that people think they're the only party who is right and righteous on this. [48:32] OK, that's a general statement. [48:33] Don't expect you to to speak to it. [48:36] But more recently, I thought that 8647 was probably not a solid basis for making a former FBI director who disappointed me profoundly on this committee. [48:49] Probably not the right way to spend our time or the perp walk. [48:52] So just so you know, I had to get that out there. [48:55] I think we all need to be mindful of how we behave and how we're perceived. [49:00] And, Mr. Smith, there were people who felt like there was a political motivation to what you were doing. [49:06] But I also think if you look at some of the facts, the facts are what they are. [49:11] And it's going to be interesting to see if at some point in the future we can get down to who precisely was responsible for forcing every member of the U.S. Senate to be in this room while thugs destroyed this building and injured over 100 police officers. [49:26] I hope to hell someday we can find somebody who was accountable for that. [49:32] And hopefully we can cool the political temperatures to get to that fact based assessment. [49:37] But, Mr. Smith, if you were to look back at the two investigations we focused most of our time at, let's assume you feel very strongly that that there was criminal intent. [49:53] There was sufficient evidence to move forward with the prosecution. [49:56] Are there any things that if you did it differently, looking back, you may have taken a different tact or tried to build, even in your job, you still have to build public support for what you're doing? [50:09] Because the default always is here. [50:12] Whoever doesn't have the White House is a vindictive prosecution. [50:15] Can you think of any examples of where you wish you'd manage the process differently or engage different people to try and rise above the allegations that you've heard today about political motivation behind the prosecutions? [50:29] Yes. [50:30] And thank you for that question. [50:31] Speak real loud. [50:32] I'm sorry. [50:33] Take that curl out. [50:34] There we go. [50:35] Okay. [50:36] Yes. [50:37] One of the things that I was taught as a prosecutor through my career is you only do your talking in the courtroom and that you don't talk on the courthouse steps. [50:47] One of the things that I learned from this experience is that if you stick to that and that alone, people can unfairly malign your team and unfairly malign you and your case in a way and you really can't respond because you don't want to interfere with someone's right to a fair trial and you don't want to get down in the gutter and start calling people names. [51:09] But at the same time, there are things being put out daily that are patently untrue and you know they're untrue. [51:17] I'm not advocating that prosecutors in the future start going on the internet every day responding to comments. [51:25] But I do think that the school of prosecution I came from, where you only speak in the courtroom, I do agree that prosecutors in the future need to learn to be able to communicate to the outside world. [51:37] Because I believe strongly we did our investigation the right way, but I limited myself in who I talked to about that. [51:47] I talked about, I think I did two announcements that were under four minutes in the time I was special counsel. [51:53] I think going forward to engender public trust in these cases, I think that's a real thing we need to think about going forward in the future. [52:02] Yeah, you know, you happen to have gotten into this job when we have the the amplifier and the sustainer of social media. [52:11] I don't think they're, you know, frankly, people have always been criticizing prosecutors for cases. [52:16] You just didn't have that persistent inbox of things that were said about you. [52:20] But I think you need to look past that. You got to win in the courtroom, not in public opinion. [52:25] And I think we need people to set the example to stop worrying about, I mean, my God, I get it every day. [52:31] That's why I don't look at social media. [52:33] But I think you've undermined some of the credibility by going out there and kind of being a spokesperson dealing with the politics of the prosecution, [52:42] where I think your observation that most of that talking should go in the courtroom is one that I hope people internalize. [52:48] Can you give me an idea of just the sheer volume of the documentation that was a, you're talking to somebody who doesn't even bring a pen into a skiff. [53:07] I write nothing down. I don't even take notes. [53:10] And I never leave it with a piece of paper that was handed to me whether they say I can or not. [53:15] That removes any doubt about whether or not I'm in possession of classified documents. [53:19] Can you give me some sense of the scale again of what you believe you found at Moro Argo? [53:25] I don't think I can due to Judge Cannon's order. [53:28] And that's in the volume two of the report? [53:30] That's correct. [53:31] Okay. And what is the substance of that report over time? At what point will that report become known? [53:38] I don't know, but I don't have any role in that. [53:42] I drafted a report pursuant to the special counsel regulations saying I needed to draft a report for the Attorney General. [53:49] The Attorney General makes the decision whether that's public or not. I've had no role in that. [53:54] Well, part of, you know, part of what I'm trying to figure out, sorry to interrupt you, but the, you know, [53:59] I do believe that we've overclassified a lot of documents. [54:02] So maybe some of these people that are getting into trouble is that they got documents that should have never been classified. [54:09] But it is very important to me to know about the magnitude of some of these documents that were outside of a SCIP, outside of a classified setting. [54:21] That's very, very concerning to me. [54:23] And whether you're a Democrat or Republican, I think you should be held accountable for it. [54:26] Any of my colleagues that did it, they should be held accountable for it. [54:29] There's no excuse. [54:31] So we're not really going to know about that until maybe some point in the future. [54:36] Why is that odd? [54:37] Why should I find that odd? [54:40] Why can't we know about the substance of some of those documents now? [54:43] Well, you can't know about it from me because I want to follow Judge Cannon's order. [54:49] No, I'm just talking about to the general public. [54:51] I mean, why I assume it could be. [54:54] Could that evidence is collected actually be resumed as a subsequent investigation at some point? [54:59] Or is it off the table based on the way it was acquired? [55:02] I'm just trying to I'm not an attorney, so I don't ask questions. [55:05] I know the answer to I legitimately trying to understand what that information is, what status it's in now, [55:11] whether or not it's relevant to future prosecutions. [55:16] I'm just trying to be mindful of Judge Cannon's order. [55:18] I think the only thing I can share with you is that we dismissed the case and we dismissed it without prejudice. [55:25] I haven't given thought to what would happen after that. [55:28] You dismissed that based on the based on the reality that president won reelection. [55:33] That's that's correct. [55:34] Both. What about the other two dismissals? [55:36] The other two cases that were not related to the president that were dismissed after the president was sworn in. [55:42] You had nothing to do with that, right? [55:44] The dismissal of the other. [55:46] That's correct. The dismissal of those cases was done after January of twenty twenty five. [55:52] The policy that required me to dismiss the case against President Trump did not require me to dismiss those cases. [56:00] And but it was a decision made by the DOJ. [56:02] Correct. [56:03] The last thing I want to leave you with, I think you would be and I know you've taken some notes because I need to parse through some of what was said today. [56:14] I think there are some very important points that were made today that may be in conflict are, you know, you know, from either either side. [56:23] I think you owe it to yourself and to this committee to commit to in writing addressing these and submit it to the committee. [56:30] Can I get your commitment to do that? [56:32] I'm thinking particularly about some of the exchange with the with Senator Schmidt. [56:37] But any of these things that kind of left out there an allegation that I'm not sure was completely proven, I think you owe it to yourself and this committee to provide us with a fulsome response. [56:48] Can I get your commitment to do that? [56:49] Yes. [56:50] Thank you. [56:51] On behalf of the chair, Senator Whitehouse. [56:53] Thanks very much, Chairman. [56:57] Mr. Smith, welcome. [57:02] I served four years as a United States attorney. [57:06] And so I have some familiarity with Department of Justice procedures. [57:11] We did public corruption investigations in that period. [57:17] And I think some of what has taken place today reflects a lack of familiarity with standard Department of Justice procedures. [57:30] So I'd like to spend my time with you talking about standard Department of Justice procedures, specifically with respect to obtaining the toll records of members of Congress. [57:43] We actually have a I guess what a realtor would call a comparable, because before you obtained toll records of members of Congress, the Department of Justice under President Trump in his first administration obtained toll records of members of Congress. [58:04] And putting those two things side by side, I think, makes for an instructive comparison. [58:11] Let me start by asking you to explain the difference between toll records and wiretap. [58:16] A wiretap is a ongoing, forward looking, in essence, eavesdropping on a conversation that's happening as it's happening. [58:30] You need to go to a judge, make an application, findings need to be made before the government can engage in a wiretap. [58:40] And you get access to content of a conversation through the wiretap, correct? [58:44] That's correct. [58:45] OK, tell about a toll record by comparison. [58:47] Toll records, to my understanding, do not contain the content of conversations. [58:53] The relevant portions, in my understanding, are they show who a call was from, who a call it was to, and the duration of that call. [59:02] They do not contain the content of the call. [59:05] So, in the first Trump administration, the Department of Justice investigated classified information leaks to the press and obtained communication records for Democratic members of Congress and staffers. [59:22] When that came out, Chairman Grassley said probes into Congress are not unusual. [59:30] He said investigations into members of Congress and staff are nothing new. [59:35] And he said the Justice Department has specific procedures for such sensitive investigations. [59:41] That was the response at the time when Democrats were the subject of the acquisition of toll records by the Department of Justice. [59:49] So, in that investigation, the Department of Justice subpoenaed Democrats' toll records, and you subpoenaed Republicans' toll records, correct? [1:00:03] Correct. [1:00:05] And I haven't heard much complaining about the subpoenas of toll records done under Trump 1, and we are here today with respect to your subpoenas. [1:00:19] The Trump Department of Justice subpoenaed the records of one member of Congress's spouse and child. [1:00:26] According to Verizon, you subpoenaed the records of a senator's family member. [1:00:31] Is that correct? [1:00:32] I'm not sure that is correct. [1:00:38] Well, if it is, and that's something that is complained of, it has a parallel in the DOJ investigation under Trump 1, where a spouse and a child had their toll records subpoenaed. [1:00:51] In the first matter, the Trump Department of Justice obtained one staffer's emails from when that staffer worked for Congress, and you obtained members' text messages, correct? [1:01:07] I'm sorry, could you say that again, Senator? [1:01:10] You obtained members' text messages. [1:01:12] My recollection regarding text messages is that it's not toll records that if what you're referring to is we subpoenaed or secured other information like the information from the National Archives that happened to have contacts with members of Congress in it, yes. [1:01:33] And if a text of a member of Congress appeared in the text chain of, say, a White House staffer whose text had been subpoenaed in the same way that a wiretap would pick up both sides of the conversation, you would pick up the text messages from the member of Congress because you would ask for records related to the recipient, the other half of that text exchange, correct? [1:02:03] That's correct. [1:02:04] That's correct. [1:02:05] Any, for example, if we were to seek a review of phone of someone outside the government or someone in the government, it may be that they had contacts with people in Congress, but that doesn't mean we're seeking their records. [1:02:17] We're seeking the records of, in this case, we're talking about the phones, the White House phones, government phones in the National Archives. [1:02:27] And in the earlier matter, the Trump Department of Justice obtained nondisclosure orders that prevented members of Congress from learning that DOJ had subpoenaed their information and you obtained nondisclosure orders preventing members of Congress from finding out about subpoenas for their toll records, correct? [1:02:46] We did secure nondisclosure orders to prevent anybody, including Donald Trump, from learning about those subpoenas. [1:02:55] And the Department of Justice under Trump had done the same thing with respect to obtaining nondisclosure orders, correct? [1:03:02] That's what I understand from the previous investigation, yes. [1:03:07] The Trump Department of Justice said that nondisclosure orders were, quote, used to protect the integrity of an investigation and prevent evidence from being destroyed. [1:03:18] You told the House that you used nondisclosure orders to protect the integrity of your investigation and prevent evidence from being destroyed, correct? [1:03:26] Correct. [1:03:27] And you were worried about President Trump and his Confederates potentially interfering or destroying evidence, correct? [1:03:40] That's correct, and I believe we had good reason to. [1:03:43] I do not doubt that. [1:03:44] When the Trump Department of Justice applied to judges for its nondisclosure orders with respect to members of Congress, the Department of Justice did not tell the judges that the subpoenas were for members of Congress because that was not DOJ policy at the time. [1:04:07] You also didn't tell the judges who approved your nondisclosure orders that the subpoenas were for members of Congress, correct? [1:04:14] That's correct. [1:04:16] That's correct, pursuant to policy. [1:04:18] And that was the DOJ's policy at the time, correct? [1:04:21] Yes. [1:04:25] The DOJ inspector general looked into the Trump DOJ review of members of Congress toll records and the nondisclosure orders and said that the applications in the Trump investigation used general language describing the risks that could arise if the subpoenas were disclosed. [1:04:53] You too used general language describing the risks that could arise when you applied for your nondisclosure orders, correct? [1:05:00] To my recollection, yes. [1:05:03] So, again, consistent with previous practice by the Trump Department of Justice. [1:05:10] Let me ask you, finally, are you aware of any effort by the committee majority to obtain volume two of your report for this hearing or other legislative or investigative purposes? [1:05:28] I am not, but I don't know if I would be aware of that. [1:05:33] Yeah. [1:05:34] I kind of doubt you would be, but I can say that from my perspective here as a member of the committee, there's no evidence that the majority even tried to get access to the report. [1:05:49] Didn't even try to get it under seal, didn't even try to get it in camera, didn't even try to test the proposition that congressional oversight that comes directly from the text of the Constitution could give us reasons to look behind a court order that may or may not stand up under scrutiny. [1:06:16] So, my time has expired, I will let it go, but I think, once again, this is a committee that has defanged itself in its complicity in not making the slightest effort to get access to the volume two report whose continued secrecy has so cabined and inhibited your ability to answer questions here today. [1:06:44] Thank you, Chairman. [1:06:45] Thank you, Chairman. [1:06:46] On a point that, before I call on Holly, a point that Senator Whitehouse made, I want to, without objection, introduce into the record a November 2nd, 2023 letter that I sent to DOJ OIG concerning concerns that in 2017, the Trump DOJ subpoenaed personal phone and email records of Republican and Democratic congressional staff. [1:07:13] I'm also entering into the record a November 8th, 2023 letter sent from me, Senator Cruz and Senator Lee to Attorney General Garland requesting information on subpoenas of congressional staff. [1:07:30] So, contrary to what my Democrat colleagues have asserted, Republicans did raise concerns about the DOJ obtaining records from congressional staff of both parties. [1:07:41] Senator Hawley. [1:07:43] Thank you very much, Mr. Chairman. [1:07:44] Mr. Smith, I have to start by saying I think that maybe I underestimated you. [1:07:50] I underestimated, in particular, your comedic talent. [1:07:53] I've been watching this whole hearing. [1:07:55] I've watched everything you said. [1:07:57] I noticed that you began by saying, I have no partisan loyalty, and you repeated over and over and over, there's nothing in your investigation about politics. [1:08:06] In fact, you're all about politics from day one. [1:08:11] Your investigation, so-called, your prosecution, so-called, was nothing other than an attempt to interfere politically in a presidential election in the United States of America. [1:08:24] You twice indicted a presidential candidate, the leading presidential candidate and a former president of the United States, during a presidential election against all Justice Department policy, against all Justice Department history, something never before seen or contemplated in 250 years of this country's history. [1:08:43] You did it anyway, all for the purpose of keeping Donald Trump off the ballot, all for the purpose of denying the voters an opportunity to vote on a former president of the United States and, at the time, the Republican nominee for president. [1:08:58] We've never seen anything like it in our country's history before. [1:09:01] If you'd had your way, our elections in this country would be like Russia's, the one they just held. [1:09:06] Oh, they had an election, sure. [1:09:07] And they had an opposition, sure. [1:09:09] It's just that Putin chose the opposition, which is exactly what the Biden Justice Department wanted to do with Donald J. Trump. [1:09:17] And that's exactly what you were doing. [1:09:19] Twice indicted the president during the election, tried to get his first trial set for during the primaries. [1:09:26] In fact, I think the first trial date you requested was like three days before the Iowa caucuses. [1:09:31] When all of that failed, you then filed a superseding indictment, a whole nother indictment on October the 2nd, I believe, 2024, five weeks before Election Day. [1:09:42] This despite the fact that the Public Integrity Division of Justice and they must have gotten quite a workout while you were around. [1:09:47] The Public Integrity Division told you don't do it. [1:09:51] We're against it. [1:09:53] It will be seen as partisan. [1:09:55] It will be seen as interfering. [1:09:57] And you did it anyway, didn't you? [1:10:00] That's incorrect. [1:10:02] You filed the indictment. [1:10:04] And indeed, the Public Integrity Division told you not to do it. [1:10:07] I've got it right here. [1:10:08] I've got your notes from the meeting. [1:10:10] Let's have a look. [1:10:11] Let's have a look. [1:10:13] They said to you. [1:10:14] These are your notes. [1:10:16] Call with your team's notes. [1:10:17] Call with the Public Integrity Division. [1:10:19] August 17, 2024. [1:10:20] They said a large segment of the population would see this as motivated by partisan purposes [1:10:25] and would not understand why the department could not wait to supersede. [1:10:30] They said public integrity has no precedent it could cite to seek to support a superseding indictment under these circumstances. [1:10:37] They said it's their advice. [1:10:39] You wait to file this superseding indictment if you do it at all. [1:10:42] But you did it anyway because you were desperate to stop Donald J. Trump. [1:10:48] And then your top deputy went out and ran for Congress as a Democrat boasting about it. [1:10:53] What was his name? [1:10:54] J.P. Cooney? [1:10:55] Do you remember him? [1:10:56] Your deputy, right? [1:10:57] He was your deputy, J.P. Cooney? [1:10:58] Yes, he was. [1:10:59] Right. [1:11:00] Let's just take a look at his campaign poster running for Congress as a Democrat boasting about [1:11:05] the fact that he went after Donald Trump during an election. [1:11:09] Here he is, J.P. Cooney, candidate for Congress as a Democrat. [1:11:12] In fact, Mr. Smith, you have quite a history of every time the law or the Constitution got [1:11:18] in your way, you twist the facts, you torture the facts, you bend the law. [1:11:22] You wanted to accuse Donald Trump, for example, of carrying on a vast right-wing conspiracy [1:11:29] with members of Congress during the electoral count. [1:11:32] And so you went to try to get senators' phones and their phone records and their text messages. [1:11:39] The only problem was the Constitution protects members of Congress' work product and their [1:11:46] phone records. [1:11:47] And you knew that was the case, didn't you? [1:11:50] I understand there are constitutional protections. [1:11:53] We followed the Constitution. [1:11:54] Oh, you didn't. [1:11:55] You didn't even attempt to. [1:11:56] In fact, you told the Attorney General. [1:11:57] You briefed the Attorney General. [1:11:58] We've got the memo right here. [1:12:00] You told the Attorney General that, indeed, members likely have a valid speech or debate [1:12:06] privilege immunizing them from compelled testimony. [1:12:09] Mr. Chairman, I'd ask consent this to be entered into the record. [1:12:11] Jackson's ordered. [1:12:12] You knew that, but you went ahead anyway. [1:12:15] You were also told that federal case law, that is the courts, said that it doesn't matter [1:12:23] how you try and get the material, whether you go to the senators directly or whether you [1:12:28] go to phone companies, the speech and debate clause still applies. [1:12:33] You were told that, either way, the senators were likely to need to be notified to be able [1:12:37] to assert their privileges, weren't you? [1:12:38] I don't believe that's accurate. [1:12:41] Really? [1:12:42] Here's a memo to you from your own office, John Pelletary, January 8th, 2023. [1:12:48] I've got it right here. [1:12:50] I'd ask now, Mr. Chairman, this to be entered into the record. [1:12:53] It's entitled, Speech or Debate Litigation Summary, in which you are told, it's addressed [1:12:59] to you, to Jack Smith, Special Counsel, from John M. Pelletary, Assistant Special Counsel, [1:13:05] in which you are told the Rayburn decision requires the government to give a member of Congress [1:13:10] the opportunity to assert privilege, and it was your office's own assessment. [1:13:15] It didn't matter whether you went to the member or whether you went to a phone company. [1:13:19] You still had to do it. [1:13:21] But you decided to ignore that, blow right through it. [1:13:25] You went to the phone companies, and you hid the fact from the court that you were seeking [1:13:34] the records of members of Congress, didn't you? [1:13:37] You didn't tell the court you were seeking subpoenas from the phone companies for members [1:13:41] of Congress, did you? [1:13:42] You hid that from the court. [1:13:43] Isn't that correct? [1:13:46] We did not say who the subpoenas were for when we sought a non-disclosure order. [1:13:51] That part is correct. [1:13:52] Yeah, exactly. [1:13:53] Yeah, exactly right. [1:13:54] I mean, here's your deposition before the House when you were asked, when you sought these [1:13:59] orders, the judge didn't know it was a member of Congress. [1:14:02] Is that correct? [1:14:03] And you said, I don't think we identified that. [1:14:05] So instead, what you decided to do was you didn't tell the members of Congress. [1:14:09] My phone was one of them that you got. [1:14:10] You didn't tell the court. [1:14:12] You went to the phone companies. [1:14:14] You didn't alert the court so that members would have a chance to assert their privileges. [1:14:18] You just ran rough-rod shot over the whole thing. [1:14:20] And then you also knew there was a federal law, in addition to the Constitution, there [1:14:24] was a federal law that requires the phone companies to notify members of Congress, to be able [1:14:30] to notify members of Congress when their records are requested. [1:14:34] But you prevented the companies effectively from doing that by seeking a gag order against [1:14:38] them, didn't you? [1:14:39] I don't think that's accurate. [1:14:43] Oh, indeed it is. [1:14:44] And we have the gag order right here. [1:14:47] I mean, let's just look at what you said to the court. [1:14:50] This is number one. [1:14:51] You had the court sign a gag order, a non-disclosure order, finding, and you testified earlier today [1:14:59] that you wrote it, that the court has reasonable grounds to believe that disclosure will result [1:15:04] in destruction of or tampering with evidence, intimidation of witnesses, and serious jeopardy [1:15:08] of the investigation. [1:15:09] So you did it. [1:15:11] Of course, when you had the court sign this, you didn't tell the court you were seeking [1:15:14] the records of members of Congress. [1:15:16] So the Constitution requires you to notify members you didn't do that. [1:15:21] It requires you, if you're going to go to phone companies, to give the members a chance [1:15:24] to assert privilege. [1:15:25] You didn't do that. [1:15:26] It requires you to tell the court when you're going to go after members' phone records. [1:15:29] You didn't do that. [1:15:30] It requires you to allow the phone companies to notify members you got the court under false [1:15:35] pretenses to prevent the companies from doing so. [1:15:39] Any time the law stood in your way, any time the Constitution stood in your way, you just [1:15:45] ignored it. [1:15:47] Is that why you lied to the House under oath about getting member text messages? [1:15:53] I answered every question I was asked truthfully. [1:15:56] Oh, I don't think so. [1:15:57] I'm proud of our investigation. [1:15:58] No, well, you shouldn't be. [1:15:59] You should be totally ashamed. [1:16:00] Let me just ask you this. [1:16:02] On December 17, 2025, you told the House that you had never gotten text messages from [1:16:09] members of Congress. [1:16:10] Let's have a look. [1:16:12] Here's what you said to the House. [1:16:14] Did you seek a search warrant for the content of any text messages of members? [1:16:20] You say, from members? [1:16:22] Yes. [1:16:23] You say, I don't recall. [1:16:25] I don't recall that. [1:16:26] It was just toll records? [1:16:28] You say, correct. [1:16:29] Now, do you recall this exchange with the House on December 17, 2025? [1:16:34] I see it there, yes. [1:16:35] Okay, good. [1:16:36] But on June 2, 2023, two full years earlier, you demanded from the National Archives records [1:16:45] that included text messages from 44 United States senators and members of Congress. [1:16:52] And, indeed, you got all of those records. [1:16:55] Isn't that correct? [1:16:56] Yes. [1:16:57] And I'm happy to explain that if you'll give me the opportunity. [1:16:59] Oh, no. [1:17:00] I understand that you got them. [1:17:01] We all understand. [1:17:02] And we know it, not because you told us, but because the Department of Justice disclosed [1:17:06] it. [1:17:07] So, two full years before this deposition, you were in possession of text messages from 44 [1:17:13] members of Congress that you went and subpoenaed. [1:17:16] You read them within 30 minutes, the Department of Justice told this committee. [1:17:21] They said that within an hour of receiving those text messages, your team was reading [1:17:26] them. [1:17:27] And yet, not only did you not notify any member of Congress whose text messages you obtained [1:17:32] pursuant to your process, you told the House, two full years later, having read all 44 members' [1:17:39] messages, you told them you'd never gotten messages. [1:17:41] You'd never requested messages from any member of Congress. [1:17:44] That was a lie, Mr. Smith. [1:17:48] And you may try your lawyer your way out of it. [1:17:52] Well, it wasn't from the member. [1:17:54] It was from the archives. [1:17:55] You knew exactly what you were being asked. [1:17:58] And you deliberately misled them. [1:18:00] You're a smart guy. [1:18:01] I think that's pretty clear. [1:18:02] But you use your ability and the powers of your office to lie to the court, to lie to [1:18:08] Congress, to lie to the American people, to lie to the House. [1:18:12] It's the worst abuse of prosecutorial power in the history of the United States. [1:18:18] And all I have to say is I'm glad you failed. [1:18:21] I don't know what our democracy would be like if you had succeeded in your effort to interfere [1:18:26] in the workings of a presidential election. [1:18:28] If it were up to me, I'd charge you with perjury. [1:18:31] We should certainly be disbarred. [1:18:33] And I can only pray that nothing like this will ever happen again in the United States [1:18:37] of America. [1:18:38] Thank you, Mr. Chairman. [1:18:40] Mr. Chairman. [1:18:41] We'll see. [1:18:42] I'd like Mr. Smith to have an opportunity to respond if there are any areas of questioning [1:18:49] he didn't get an opportunity to respond to. [1:18:52] There were several things that Senator Holley just said that are not accurate, including, [1:18:59] among other things, the process we went about to get these records from NARA. [1:19:05] That was a request for White House phones. [1:19:07] It was also inaccurate to state that our indictment happened on October 2nd. [1:19:13] We indicted that case in August. [1:19:16] And we consulted with the Public Integrity Section during that process. [1:19:23] And the Public Integrity Section ultimately concurred that we had followed the election year [1:19:29] sensitivities policy. [1:19:30] I just want that to be clear. [1:19:32] In closing, Mr. Smith has said that he had an all-star team and his investigators were superstars. [1:19:42] Mr. Smith said that he did the right thing and he followed the rules. [1:19:48] But in my opening statement, I made clear the records tell a very different story. [1:19:55] Today, this committee has given examples after examples proving his operation wasn't a normal prosecution. [1:20:03] We've made public emails, text, and other documents proving defects, failures, and political motives. [1:20:13] His own words and that of his staff have told the tale of rampant wrongdoing and political conduct. [1:20:24] Mr. Smith and his staff used thug-ish tactics to target the entire Republican political apparatus, [1:20:34] including our constituents who were exercising their First Amendment rights. [1:20:39] He effectively praised his team for infringing on the Constitution rather than calling them out for their obvious historic misconduct. [1:20:50] It's shameful, and the American public deserve better than to have funded that work. [1:20:59] The hearing record will remain open for one week where questions will be submitted in writing, [1:21:05] and we expect responses within two weeks. [1:21:08] This hearing is part of my investigative work, not the end of it. [1:21:14] My and Senator Johnson's investigation will continue, but today's hearing is adjourned. [1:21:22] adjourned. [1:21:23] Ho���