3 issues surrounding Jack Smith’s Senate hearing on Trump probes

1. Smith’s decisions to charge Trump

Attorney General Merrick Garland appointed Smith special counsel in November 2022 to investigate Trump’s efforts to overturn the 2020 election and his retention of classified government documents. Smith brought an election-interference case and a separate classified-documents case. Sen. Dick Durbin’s office, representing the senior Democrat on the Judiciary Committee, says the cases involved four counts and 40 counts, respectively.

Smith is expected to stand by those charging decisions and say he would make them again on the same facts, regardless of the president’s party. That account comes from prepared remarks reported before the hearing, not a transcript of testimony he has delivered to the Senate.

In remarks reported by The Associated Press and carried by CBS News, Smith says, “I made these decisions without regard to President Trump's political association, activities, beliefs, or candidacy in the 2024 presidential election.” He is also expected to reject calls for his prosecution. Those are Smith’s stated positions; the hearing will give senators an opportunity to question him about the decisions behind them.

After Trump’s 2024 reelection, Smith sought dismissal of both cases under the Justice Department’s position that a sitting president cannot be federally indicted or prosecuted, according to Durbin’s office. The cases’ dismissal did not settle the separate dispute over whether Smith’s investigative methods were appropriate.

One limit on public scrutiny remains: Judge Aileen Cannon has barred release of the second volume of Smith’s report, which concerns the classified-documents investigation. The restriction means the public cannot assess that volume directly. It does not establish what Smith will or will not be able to discuss at the hearing.

2. The records obtained from lawmakers

Senate Judiciary Chairman Chuck Grassley and the committee’s Republican majority have focused partly on communications involving members of Congress. In a committee release, Republicans say Smith’s team obtained text messages involving 44 members through a subpoena to the National Archives. They also allege investigators bypassed a process meant to screen material before review.

Those are allegations about how investigators handled the records, not established findings that they violated the law or constitutional protections. The release’s count does not mean that all 44 members were investigation targets, that all their messages were privileged or that investigators read every message.

The distinction between kinds of records matters. The National Archives subpoena described by Senate Republicans concerned text-message content. Separate subpoenas for toll records concerned information about calls, not the words spoken or written in them. Treating those two processes as one would obscure what investigators sought and what safeguards each might have required.

Congress has reason to examine how federal investigators obtain communications involving lawmakers and whether they follow safeguards for potentially protected material. Answering those questions requires more than the hearing’s title or an allegation in a press release. It requires a clear account of the records sought, the review process and what the available evidence shows Smith’s team did.

3. Smith’s earlier House testimony

The Senate hearing also follows a separate dispute over Smith’s testimony to the House Judiciary Committee. Smith gave a closed-door deposition on Dec. 17, 2025. On July 22, 2026, House Judiciary Chairman Jim Jordan referred him to the Justice Department for possible criminal prosecution, alleging he made false statements about records obtained by investigators.

A referral asks the department to consider an allegation. It is not a criminal charge or a finding that Smith lied. Smith’s lawyers, Peter Koski and Lanny Breuer, dispute Jordan’s account. They say Smith answered questions about toll-record subpoenas and that those records did not contain the content of calls or messages, as PBS News reported.

That disagreement makes the precise wording of the House questions and answers important. It also makes it essential to keep Jordan’s referral separate from the Senate committee’s concerns about text messages obtained through the National Archives subpoena. Neither dispute is resolved simply by repeating one side’s description of it.

Durbin said Smith had sought a public Senate appearance and criticized Republicans for delaying it. He also faulted them for not seeking access to the classified-documents report volume. For the public, the test on Tuesday is whether senators can establish what happened in the investigations and give Smith a chance to answer specific questions. What they ask, what he says and whether the committee produces evidence about the safeguards remain open.