by Julie Kelly
Special Counsel Jack Smith’s criminal case against Donald Trump for the events of January 6 is inextricably tied to the work of the special House committee that conducted an 18-month investigation into what happened before, on, and after that day.
In fact, one could safely argue that Smith lifted much of the language directly from the committee’s findings to prepare his 45-page indictment. Three of the four criminal referrals made by the committee, formed by then-House Speaker Nancy Pelosi in June 2021, are reflected in Smith’s indictment. As Kyle Cheney, Politico’s legal affairs reporter recently noted, “the words in Smith’s filing are almost verbatim the case that the committee’s vice chair, Liz Cheney, made at the panel’s first public hearing.”
Before the committee wrapped up in December 2022, Smith, appointed by Attorney General Merrick Garland the month before, asked the committee to turn over all its investigative material to the special counsel’s office.
So, the symbiotic relationship between the DOJ and Pelosi’s committee is well-documented—which should raise plenty of eyebrows now that Representative Barry Loudermilk (R-Ga) has publicly confirmed the recorded interviews of roughly 1,000 witnesses are missing. “All of the videotapes of all depositions are gone,” Loudermilk, chairman of the Oversight Subcommittee for the House Administration Committee, told Just the News on Thursday night.
Loudermilk first learned the videos had not been preserved in a letter sent by Rep. Bennie Thompson, chairman of the now defunct committee.
“The Select Committee was not obligated to archive all video recordings of transcribed interviews or depositions,” Thompson informed Loudermilk in July. “Based on guidance from House authorities, the Select Committee determined that the written transcripts provided by nonpartisan, professional official reporters, which the witnesses and Select Committee staff had the opportunity to review for errata, were the official, permanent records of transcribed interviews and depositions.”
Thompson’s claim, however, appears to violate both House rules as well as the legislation that created the committee. The resolution stated that “the records of the Select Committee shall become the records of such committee or committees designated by the Speaker,”—in other words, Loudermilk’s committee after Republicans won control of the House.
What About Obstruction of an Official Proceeding?
Now, one would assume Smith and the Department of Justice would be furious that a congressional body responsible for archiving critical evidence in the unprecedented criminal case of a former president failed to do so. If any action clearly meets the legal standard of obstruction of justice—or obstruction of an official proceeding, one of the charges against Trump and more than 300 Jan 6 defendants—it is the destruction of recorded depositions of several individuals who may appear as witnesses in Trump’s March 2024 trial.
But not only is Smith not enraged, his office is defending Thompson’s failure to preserve the tapes. In response to a motion filed by Trump’s counsel seeking the videos as well as other missing committee materials, Smith objected to what he called “an aimless fishing expedition.” In doing so, Smith once again lifted the language of committee officials. “The Select Committee explained that it had ‘determined that the written transcripts provided by nonpartisan, professional official reporters, which the witnesses and Select Committee staff had the opportunity to review for errata, were the official, permanent records of transcribed interviews and depositions,’” Smith wrote in an October filing.
Written transcripts, Smith argued, rendered demands for the tapes as “superfluous.”
Judge Chutkan also appears unconcerned. She concurred with Smith’s assessment that Trump’s request amounted to a “fishing expedition” and agreed with Smith’s view that “the video recordings are categorically irrelevant at this time.”
But the Obama-appointed judge went even further. She inconceivably criticized Trump’s lawyers for not picking up on certain body language from written documents. “For example, Defendant could have used the written transcripts of the interviews which he already possesses to identify particular portions of video recordings where ‘a witness’s demeanor, tone, and expression’ would likely provide impeaching evidence or he could have proffered some other reason to believe that the video recordings would do so.”
So, according to Chutkan, Trump’s lawyers should scour every written transcript–usually a few hundred pages per witness–to see when an individual might be backpedaling or straight-up lying? And since when is it the defense’s responsibility, rather than that of the prosecution who brought the case, to ascertain the validity of the evidence?
Of course, Chutkan should be most concerned with the possibility that a staffer did not accurately transcribe the recorded depositions, either accidentally or intentionally. But when acting as nothing more than a rubber stamp for the government, that sort of judicial scrutiny is not necessary.