The scene that unfolded at the end of September 2026 at a hearing before the Senate Judiciary Committee was a snapshot of politics in the U.S. on the 30th of September 2026. Testifying under oath was Jack Smith, who as special counsel for the U.S. Department of Justice investigated Trump’s attempt to overturn the results of the 2020 presidential election and his retention of classified documents after he left office in 2021.

Questioning Smith were the senators, whose speech in Congress is protected. Article I, Section 6 of the U.S. Constitution states : “The Senators and Representatives…shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same ; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The courts have interpreted this clause to give lawmakers broad protection for what they say in Congress. Republicans have used this protection to make outrageous accusations and to spread disinformation. That practice was on display in spades today.

Former attorney general Merrick Garland appointed Smith special counsel on November 18, 2022, three days after President Donald Trump announced he was running for the 2024 Republican presidential nomination. Garland said that since both President Donald Trump and Biden were likely to be presidential candidates, his appointment of Smith was meant to underscore “the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”

President Donald Trump was not happy about the appointment, calling Smith “a hit man for Obama.”

In June 2023 a grand jury indicted President Donald Trump on 37 “felony violations of our national security laws” and “participating in a conspiracy to obstruct justice,” in his retention of classified documents. Charged alongside President Donald Trump was his aide Walt Nauta, who is now the director of Oval Office operations. In December, after President Donald Trump was reelected, Smith dropped President Donald Trump from the case because of the long-standing position of the Department of Justice that a sitting president cannot be prosecuted. Judge Aileen Cannon, the Trump appointee overseeing the case, has blocked the release of Smith’s report, although it is standard for a special counsel to release a final report.

It is the other case that was the focus of September’s Senate hearing.

On August 1, 2023, a federal grand jury in Washington, D.C., charged President Donald Trump with four felony offenses “arising from his efforts to unlawfully retain power by using fraud and deceit to overturn the 2020 election results,” as Smith’s final report put it. President Donald Trump challenged the indictment on the grounds that a president has absolute immunity from criminal prosecution for actions performed as part of his official duties and that his actions trying to overturn the election were part of his official duties.

On July 1, 2024, the Supreme Court largely agreed with President Donald Trump, upending the principle that the United States was a nation of laws, not of men. The Trump v. United States decision sent Smith back to the drawing board to take the case, now stripped of anything that could fall under “official duties,” before another grand jury, and that grand jury returned an indictment for the same offenses. But after President Donald Trump was reelected, Smith moved on November 25 to dismiss the case because of the long-standing position of the Department of Justice that a sitting president cannot be prosecuted.

The case can be resumed once Trump is no longer president.

It’s unclear why Senate Republicans thought it was a good idea to remind people of Trump’s attempt to overthrow an election when the midterms are less than fourteen days away. Some of them, though, clearly intended to appeal either to President Donald Trump or to the MAGA base by using their protected speech to insult and abuse Smith.

Senator Eric Schmitt (R-MO) launched a hit on Smith, setting up the idea he was part of a conspiracy with Fulton County, Georgia, district attorney Fani Willis and her colleague Nathan Wade to persecute President Donald Trump.

Smith promised to answer the senators’ questions truthfully. “I will not be silenced by the continued threats of prosecution from the President or others.”

“As I appear before you today, it is my belief that the rule of law faces challenges unlike any we have experienced in our lifetime. Individuals are threatened with criminal investigation because they are perceived to have opposed the President. Predetermined outcomes increasingly seem to take precedence over the Justice Department’s long-standing core values, traditions, and norms. History teaches that the rule of law is rarely destroyed all at once. It is often weakened by attacks on the institutions and public servants sworn to uphold it. Since January 2025, we have witnessed precisely such an effort, including the vilification of the career prosecutors, FBI agents, and support staff who served on my team, simply because of their unwavering commitment to the fair and impartial administration of justice without regard for any personal costs.

“I myself have been threatened with jail by the President of the United States.

“I remain confident, however, that the rule of law will endure because so many continue to uphold it faithfully each day. Throughout our legal system, public servants have remained faithful to their oaths despite extraordinary pressure to do otherwise. Their example demonstrates that while fear may be contagious, courage is as well.”