On January 13, 2025, Special Counsel Jack Smith’s “Report On Efforts To Interfere With The Lawful Transfer Of Power Following The 2020 Presidential Election Or The Certification Of The Electoral College Vote Held On January 6, 2021” was made public.  Former congresswoman Liz Cheney called the report an “exhaustive and independent investigation.”  But Smith’s report is riddled with deceit, ranging from his failure to discuss President Donald Trump’s pre–January 6 authorization of 10,000 National Guard troops for the Capitol to his deceitful description of the critical timeline of events regarding Trump’s speech that day.  

Trump began his speech at the 3:28:45 mark in this video.  At the 4:41 mark in the video, Trump says,

Our brightest days are before us. Our greatest achievements still wait.  I think one of our great achievements will be election security, because nobody, until I came along, had any idea how corrupt our elections were.  And again, most people would stand there at 9 o’clock in the evening and say, “I want to thank you very much,” and they go off to some other life.  But I said something is wrong here, something is really wrong, can’t have happened, and we fight.  We fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.

Trump’s speech ends at the 4:42:40 mark in the video.  A time-stamped video of his speech is here. 

Trump’s speech began at noon local time and ended at 1:12 P.M. and was delivered from the Ellipse across the street from the south lawn of the White House.  From the location of the speech to the Capitol is a little more than a mile and a half.  The barricades on the grounds at the Capitol were first breached at 1:00 P.M.  Trump uttered the phrase “[w]e fight like hell” at 1:10 P.M.  Given that the barricades on the grounds were first breached at 1:00 P.M., and Trump’s delivery of the “fight” phrase took place at 1:10 P.M., the phrase could not have caused the breach of the barricades on the Capitol grounds. 

Although the loudspeaker system was massive, it is highly doubtful that the people breaching the barricades could hear Trump from the loudspeaker system, and Smith fails to provide any evidence that anybody who breached the barricades was listening to Trump’s speech.  Smith does not provide any evidence that the “fight” phrase was transmitted by text messages or otherwise to people at the Capitol grounds or building. 

On pages 24–25 of his report, Smith states (all footnotes omitted), 

Although Mr. Trump at one point also told his supporters to “peacefully and patriotically make [their] voices heard,” he used the word “fight” more than ten times in the speech before concluding by directing his supporters to march to the Capitol to give allied Members of Congress “the kind of pride and boldness they need to take back our country.”  He also told the angry crowd that “if you don’t fight like hell, you’re not going to have a country anymore.” [snip]

At Mr. Trump’s urging, thousands of his supporters marched from the Ellipse to the Capitol building.  There, Mr. Pence began the certification at around 1:00 P.M.  Outside the building, the crowd swelled and broke through barriers cordoning off the grounds.  The crowd that attacked the Capitol was filled with Mr. Trump’s supporters, as made clear by their Trump shirts, signs, and flags.

On page 29 of his report, Smith states that after his speech, Trump returned to the White House and was in the dining room at around 1:30 P.M.  Smith also states that the crowd breached the Capitol building, as opposed to the barricades on the grounds, at around 2:13 P.M. 

On page 79 of his report, Smith states, “Mr. Trump’s words inspired his supporters to commit acts of physical violence.  On January 6, Mr. Trump used his Ellipse speech to direct his supporters to ‘go[] to the Capitol’ and ‘fight like hell.’  He explicitly licensed them . . . because fraud was allegedly involved.” 

On page 81 of his report, Smith states, “And when he warned his gathered supporters that ‘if you don’t fight like hell, you’re not going to have a country anymore,’ the crowd marched to the Capitol in response.” 

Smith fails to state that at 1:00 P.M., Trump had not yet spoken the “fight like hell” phrase, and the speech was twelve minutes away from ending.  Smith fails to explain how, given that the distance from the Ellipse to the Capitol is a little more than a mile and a half, the crowd that heard the “fight like hell” phrase at 1:10 P.M. could be responsible for the breach of the barriers on the grounds of the Capitol ten minutes earlier at 1:00 P.M. 

Smith does not tell us who was incited to breach the barricades at the Capitol by Trump’s phrase “we fight like hell.”  Where is the evidence that those who breached the barricades on the Capitol grounds were incited to do it by that part of Trump’s speech?  Where is the evidence that those who were inside the Capitol building were incited to stay there by that part of Trump’s speech?  Smith’s report is mostly based on Trump’s phrase “we fight like hell” when that phrase could not have caused the breach of the barricades on the Capitol grounds.  Moreover, Smith does not cite any evidence showing that the phrase was communicated to anybody who thereafter committed illegal activity on January 6, 2021. 

Smith tries to deceive the public into believing that Trump’s “fight like hell” phrase caused the crowd at the Ellipse listening to the speech to nearly immediately thereafter breach the barricades on the Capitol grounds a mile and a half away.  Smith will be successful as long as the dominant media are equally deceitful.

Allan J. Favish is an attorney in Los Angeles.  His website is allanfavish.com.  James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

Image: Tom Hilton via Flickr, CC BY 2.0.