The former special counsel told senators he would bring the same charges against Donald Trump today, while a Republican senator's perjury accusation over a basketball game fell apart within minutes.
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| Former special counsel Jack Smith testifies before the Senate Judiciary Committee in the Hart Senate Office Building on Sept. 29, 2026. The hearing examined his investigations of Donald Trump. (Photo by Chip Somodevilla/Getty Images) |
Former special counsel Jack Smith testified before the Senate Judiciary Committee on Tuesday, Sept. 29, defending his two criminal cases against President Donald Trump. The hearing lasted about four hours. It included a moment that quickly became its most talked-about exchange: Sen. Eric Schmitt, R-Mo., accused Smith of lying about attending an Atlanta Hawks game, and the claim unraveled almost immediately.
In his opening statement, Smith said he stands by his decisions as special counsel, including the decision to charge Trump. He said those choices were made without regard to Trump's politics or his candidacy. He told the panel he would prosecute a former president on the same facts today, whether that person were a Republican or a Democrat.
The basketball exchange
Schmitt asked Smith whether he had attended an Atlanta Hawks home game on Feb. 3, 2024. He suggested the trip could have been a chance to meet with Fulton County District Attorney Fani Willis, who brought a separate criminal case against Trump in Georgia. As part of that theory, Schmitt noted the date fell the day after Willis and special prosecutor Nathan Wade acknowledged an affair.
Schmitt said he had text messages from members of Smith's team discussing seats at a game. Sen. John Kennedy, R-La., helped hold up a poster board showing the messages. Schmitt warned Smith not to perjure himself, though the poster was taken down too quickly for most people in the room to read it.
Smith appeared confused. He said he definitely had not gone to a Hawks game and had no recollection of being in Atlanta. Schmitt responded that Smith had already perjured himself and called him a "dirtbag."
Sen. Amy Klobuchar, D-Minn., invited Smith to explain. He said he had indeed attended a basketball game that day, but it was the Iowa Hawkeyes playing at the University of Maryland, not the Atlanta Hawks. Caitlin Clark, then Iowa's star guard and now a WNBA player, scored 38 points with 12 assists in that game. CNN reported that Smith's account matches a game played that day.
Klobuchar suggested Schmitt had confused the Hawks with the Hawkeyes and said he should apologize. Schmitt said he still stood by calling Smith a "dirtbag" and then left the hearing. He also said the texts could have been related to the Fulton County prosecution. In a later appearance on the "Charlie Kirk Show," he said he had been asking questions to see whether Smith would trap himself, according to CNN. His office had not responded to a request for comment when CNN reported on the hearing.
Disputes over subpoenas and phone records
Much of the hearing focused on subpoenas Smith's team issued for the phone records of Republican lawmakers. Investigators were tracing Trump's efforts to pressure Congress and block certification of Joe Biden's 2020 election victory. Smith's team also obtained financial records from Republican-aligned groups while examining whether Trump defrauded supporters by raising money on false claims of election fraud. That inquiry did not lead to charges.
Judiciary Chairman Chuck Grassley, R-Iowa, pressed Smith on the financial subpoenas. Smith confirmed his office obtained financial information and said he could not recite every subpoena from memory. He said each was issued as part of a criminal investigation into one of the most serious crimes in the country's history. Grassley described Smith's operation as a partisan effort that broke rules and said Smith has no credibility.
Sen. Ted Cruz, R-Texas, said Smith's conduct was the most egregious abuse of power in the history of the Justice Department. He also asked, "Is it a crime to be a Republican?" Smith answered, "Absolutely not."
Several Republicans criticized Smith for seeking court orders that kept the phone subpoenas secret. They argued the orders implied that lawmakers might destroy evidence or intimidate witnesses. Sen. Darline Graham, R-S.C., whose brother, Sen. Lindsey Graham, died in July, raised the subpoena of his records. She asked whether Smith believed her brother would destroy evidence he did not possess.
Smith said no. He called Lindsey Graham a patriotic public servant who was not a target of the investigation. He said Graham likely would have been a witness in the case against Trump, according to Smith's testimony as reported by CNN. Smith added that Graham had looked into Trump's fraud claims and found them false.
More broadly, Smith told the committee that the secrecy requests were never based on a belief that members of Congress would obstruct justice. He said the concern was that Trump and his associates might do so, and he pointed to the obstruction allegations in the indictments. He also cited Trump's past suggestion that a known witness, former Joint Chiefs Chairman Gen. Mark Milley, deserved the death penalty.
Republicans argued the phone-record subpoenas may have violated the Constitution's "speech or debate" clause. The issue is contested. Members of Congress cannot be prosecuted or forced to testify about their legislative acts. But appeals courts have disagreed on whether the clause also creates a confidentiality shield, and no court has read it as barring subpoenas to phone companies for call logs. Smith said the Justice Department's public integrity section approved the subpoenas.
Elsewhere in the hearing, Sen. Josh Hawley, R-Mo., repeated an earlier allegation that Smith lied about seeking the contents of lawmakers' communications. CNN reported that Smith pointed to holes in that theory. Kennedy suggested Smith may have lobbied to become special counsel. Smith denied it, and Kennedy moved on.
Democrats defend the investigation
Democrats used their time to highlight the evidence Smith gathered and the events of Jan. 6, 2021. Ranking Member Dick Durbin, D-Ill., said there was nothing untoward about the investigation and called the criticism of Smith a smokescreen. He noted that Smith had offered to testify publicly nearly a year ago.
Sen. Adam Schiff, D-Calif., said Republican anger at Smith and the FBI was meant to distract from the fact that many witnesses against Trump in both cases were Republicans. Sen. Cory Booker, D-N.J., called the hearing "a farce" and accused Republicans of perpetuating the false claim that Trump was cheated out of the 2020 election.
Smith defends his team and his choices
Smith said he was proud of the members of his team who have since been fired or targeted, calling that treatment illegal and an outrage. He said he would not be silenced by continued threats of prosecution from the president or others. He also warned that driving experienced public servants out of government weakens the institutions the country relies on for justice.
Asked about regrets, Smith said he regretted that his colleagues had been unfairly fired and vilified. He also said he came from a generation of prosecutors who rarely spoke publicly, even to defend their work, and that this tradition proved costly. He said future prosecutors need to learn to communicate with the public.
Background and what remains open
The Justice Department opened two investigations involving Trump in early 2022. One examined a plan to create false slates of electors to block Biden's certification. The other concerned Trump's handling of classified documents and alleged obstruction of efforts to retrieve them. Smith was appointed special counsel in November 2022 and brought two indictments in 2023. After Trump won the 2024 election, Smith moved to dismiss both cases under a Justice Department policy against prosecuting a sitting president, and neither reached a jury.
Trump has denied wrongdoing and has repeatedly said Smith should face prosecution. In July, Attorney General Todd Blanche told Congress the department was reviewing a criminal referral from Republicans who accuse Smith of lying in earlier House testimony. Smith's attorneys called the referral "spurious" and said it took his testimony out of context. Smith has said he answered truthfully.
Smith is still limited in what he can say about the classified documents case. U.S. District Judge Aileen Cannon, who dismissed that case, has a standing order barring government officials from revealing information that could appear in his final report. An appeals court is weighing a lawsuit from First Amendment groups seeking to lift that order and release the report.