"He had no defense": Legal experts say Jack Smith's report shows Trump would have been convicted

With special counsel Jack Smith’s final report on 2020 election subversion now public, legal experts say that the case against President-elect Donald Trump was strong enough that it likely would have resulted in a conviction and that he was only saved from a federal conviction by delays in the legal process.

In his report, Smith wrote that, 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.” 

Ty Cobb, a former White House attorney during the Trump administration, agrees. “Yes, he would have been convicted," Cobb told Salon. "He had no defenses.”

“He wouldn’t have had any witnesses to contest any of the evidence most of which is heavily documented, on tape or public information. There were no facts he could have credibly countered,” Cobb said. “Everything alleged in the indictment was easily provable. And as the report makes clear virtually every assertion by the government had layers of corroboration. A conviction was certain.”

Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, also thinks that Smith brought a strong case, while cautioning that a conviction was not guaranteed.

“As laid out by Jack Smith in his report, the evidence here seems very strong, but, of course, a defendant would have an opportunity to cross-examine every witness and present his own defense,” McQuade said. “With a defendant as powerful as Donald Trump, that is no small thing.”

Unfortunately, a trial was never to be, Smith thwarted by "the Supreme Court decision on immunity as well as its delay in reaching it," McQuade noted. “Now we will never know. However, this report is important to document what happened. History will note that the evidence against Trump, prosecutors’ efforts to hold a former president accountable, and the Supreme Court’s intervention."

But not all agree that the Supreme Court’s timeline in deciding the immunity case, which entailed months of treading water as the justices waited to issue a decision, was the decisive factor in preventing the case from going to trial.

Cobb pointed to former House Speaker, Rep. Nancy Pelosi, D-Calif., and her refusing “to share interview memos and transcripts of depositions of witnesses with the DOJ until after the hearings, which were delayed for months by Pelosi to get a pre-election show trial before the 2022 midterms."

The Justice Department “lost up to 8 months because of Pelosi and the committee as they couldn’t proceed without that information without harming the potential credibility of the witnesses at a trial,” according to Cobb.

Michael Morely, a law professor at Florida State University, said one of the more interesting aspects of Smith's report is what alleged crimes he declined to pursue. "For me, one of the most interesting things about the report was the explanation for why the special counsel chose not to support certain charges," he told Salon.

That's a reference to a section of the report where Smith notes that he declined to bring certain charges, such as those under the Insurrection Act, a Civil War-era statute that bars those who incite insurrection against the United States from holding federal office. Smith noted that he and his office was "aware of the litigation risk that would be presented by employing this long-dormant statute."

Morely said that this showed a level of caution in Smith's handling of the case.  "You want to apply clear, well settled, generally accepted, right line rules," he noted, noting that any conviction would also have faced an appeal.

“In any sort of appeal the government would have to run the table for a conviction to be upheld,” Morely said. “President Trump would only have to point to one misapplication or one problem in order to get the conviction overturned.”

Bennett Gershman, a law professor at Pace University, told Salon that, while one should generally be cautious of speculating about how jurors might decide a case, "a federal jury would have before it overwhelming evidence of Trump’s attempt to stage an American coup d’etat and would very likely, I would say almost certainly, convict him."

"Examining the evidence as detailed in Smith’s final report," Gershman continued, "a jury would hear highly credible testimony from dozens of numerous state officials in swing states — all  Republican officials with no motive to lie against Trump —  describing Trump’s threats, intimidation, and bluster to ignore the popular vote and submit fraudulent slates of electors for him; threats to force Justice Department officials to open sham investigations of electoral fraud; threats and pressure on Mike Pence to overturn the election results; incitement of a mob to attack the capitol to prevent Congress from declaring Biden the winner; and targeting witnesses with threats and intimidation not to testify."

Trump, Gershman said, was ultimately spared by voters' decision to return him to the White House.

"Historians will look with astonishment at this extraordinary moment in American history where the rule of law broke down, and a would-be dictator and con man was able to save himself from prison by convincing enough people that he was their savior," he said.