Donald Trump would have been convicted in 6 January case, Justice Department report says

The special counsel appointed to investigate US President-elect Donald Trump's efforts to overthrow the 2020 election has released his report into the case, which concludes that had Trump not been re-elected last November, he would most likely have been convicted.

Released one week to the day before Trump is sworn in for his second term, the report from Jack Smith's team insists that Trump's repeated claims of a "witch hunt" are false and that the case was an effort to protect the rule of law itself.

"The throughline of all of Mr Trump's criminal efforts was deceit — knowingly false claims of election fraud — and the evidence shows that Mr Trump used these lies as a weapon to defeat a federal government function foundational to the United States' democratic process," the report states.

The report focuses fresh attention on Trump's frantic but failed effort to cling to power after losing the 2020 election, an initiative that included pressuring state officials to subvert the result or thwart the Electoral College process, bringing lawsuits with no factual basis in courts across several states, spreading false claims about non-existent fraud in the vote-counting process, and urging a crowd to assemble at the US Capitol to pressure then-Vice President Mike Pence into refusing to certify the result.

That element of the scheme ended in a violent attack on Congress, resulting in the deaths of several protesters and police officers. According to multiple witnesses who have testified in public, Trump watched the riot on TV and for several hours refused pleas from his staff to call it off via social media despite it being clear what was unfolding.

With any prosecution foreclosed by Trump's election victory despite the case's advanced progress, the document is expected to be the final Justice Department chronicle of a dark chapter in American history in which the peaceful transfer of power was disrupted — albeit unsuccessfully.

Trump responded early Tuesday with a post on his bespoke platform Truth Social, claiming he was "totally innocent", calling Smith "a lamebrain prosecutor who was unable to get his case tried before the Election", and adding that "THE VOTERS HAVE SPOKEN!!!"

Timed out

Trump had been indicted in August 2023 on charges of working to overturn the election, but the case was delayed by appeals and ultimately significantly narrowed by a conservative-majority Supreme Court that held for the first time that former presidents enjoy sweeping immunity from criminal prosecution for official acts.

Though Smith sought to salvage the indictment, the team dismissed it entirely in November because of longstanding Justice Department policy that says sitting presidents cannot face federal prosecution.

"The Department's view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Office stands fully behind," the report says.

"Indeed, but for Mr Trump's election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial."

The Justice Department transmitted the report to Congress early Tuesday after a judge rejected Trump's effort to block its release.

A separate volume of the report focused on Trump's hoarding of classified documents at Mar-a-Lago, actions that formed the basis of a separate indictment, but it will remain under wraps for now while prosecutors continue proceedings against Trump's co-defendants in that case.

What might have been

Though most of the details of Trump's efforts to undo the election are already well established, the document includes for the first time Smith's own detailed assessment of his own investigation, as well as a rebuttal of Trump and his allies' claims that the inquiry was politicised or that Smith worked in collaboration with the White House — an assessment he calls "laughable".

"While we were not able to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law matters," he wrote in a letter to Attorney General Merrick Garland, which was attached to the report. "I believe the example our team set for others to fight for justice without regard for the personal costs matters."

The special counsel also laid out the challenges his office faced in its investigation, including Trump's repeated assertion of executive privilege to try to block witnesses from providing evidence. The tactic, which Trump has used in other cases, failed to derail the case but forced prosecutors into lengthy court battles before the case could be charged.

Another "significant challenge" was Trump's "ability and willingness to use his influence and following on social media to target witnesses, courts, prosecutors," Smith points out, a campaign that led prosecutors to seek a gag order to curb Trump's harassment.

"Mr Trump's resort to intimidation and harassment during the investigation was not new, as demonstrated by his actions during the charged conspiracies," Smith writes, pointing out that it in fact lent weight to his case when it came to the public element of the effort to overturn the 2020 election result.

"A fundamental component of Mr Trump's conduct underlying the charges in the Election Case was his pattern of using social media — at the time, Twitter — to publicly attack and seek to influence state and federal officials, judges, and election workers who refused to support false claims that the election had been stolen or who otherwise resisted complicity in Mr Trump's scheme," he adds.

Various of Trump's associates have faced consequences for their actions. His former lawyer Rudy Giuliani, who led the failed effort to bring post-election lawsuits across swing states, is being pursued to hand over personal assets awarded to two Georgia election workers who faced violent threats because of false claims about them he made in public.

Smith also for the first time explains the thought process behind his team's prosecution decisions, writing that his office decided not to charge Trump with incitement in part because of free speech concerns.

He says they also declined to level a charge of insurrection because Trump was the sitting president at the time the case pertained to, and because there was doubt about whether the team could proceed to trial with the offence — which he points out has never been prosecuted before in the US.