The Senate Judiciary Committee on Wednesday held a hearing to consider Justin Smith’s nomination to serve in a Missouri seat on the Eighth Circuit, in addition to the nominations of Jeffrey Kuhlman, Tony Powell, and Tony Mattivi — all for the District of Kansas. Smith is one of Trump’s personal lawyers who appeared alone on the hearing’s first panel, and most senators only stayed long enough to ask him questions.
During his opening remarks, Chair Chuck Grassley addressed how nominees have been responding to questions about the outcome of the 2020 election. Grassley asserted that the nominees’ responses — saying that Joe Biden was certified as president, but not saying that he won the election — are “correct both factually and legally” and claimed that Democrats on the committee have “insulted nominees for giving legally accurate answers.”
Ranking Member Dick Durbin denied that this was an unfair question and pointed out its particular importance at today’s hearing given Justin Smith’s background. “Mr. Smith is also an election denier,” he said. “In 2020, he signed an amicus brief in Texas v. Pennsylvania seeking to overturn the results of the election. President Trump continues to deny that he lost the 2020 election, and he has bragged about interfering in this year’s midterm elections. A key component of his plan is installing loyalists at the Justice Department and on the bench.”
Several Democratic senators who were in attendance addressed this issue in their questioning.
Justin Smith is an election denier
Senator Durbin asked Smith whether he would acknowledge that Trump lost the 2020 election to Biden. He would not. “I acknowledge, as Chairman Grassley was talking about in his opening remarks, that under Article II and the 12th Amendment, that the Electoral College cast their votes in December of 2020,” Smith said. “In January of 2021, Congress met to open and count those votes, and as a result of that process, Congress certified Joe Biden as the president.”
When Senator Durbin asked Smith who won the popular vote, Smith said that the popular vote is not mentioned in the Constitution and that it’s the Electoral College that matters.
“At the end of this exercise, at some point, there is going to be a video I’m sure that will be released, which will watch the painful explanation by every nominee from the Trump White House for the federal bench as to why they couldn’t answer the basic question every single person in this room knows is true. Donald Trump lost the election in 2020 to Joe Biden,” Senator Durbin said. “He may have denied it, but it’s a fact. And the reason why we continue to engage in these political gymnastics is a question about whether or not you can ever say no to Donald Trump when it comes to any future service. And that is a basic concern.”
Senator Richard Blumenthal, who has been asking nominees about the 2020 election during their confirmation hearings, acknowledged that Smith was already asked about the topic — but said he wanted to hear the responses for himself. “As I explained, the popular vote is not part of, you know, the Article II or the 12th Amendment,” Smith said. “There’s an Electoral College that meets in December of an election year for president and that gathers to cast the electoral votes.”
As Smith began to dodge the next question, Senator Blumenthal cut him off. “In other words, you’re not going to answer. You’re going to give me the same rote, rehearsed answer, which frankly makes you look ridiculous, if not pathetic,” he said. “If you don’t have the courage now to state your independent judgment on a clear factual issue, I don’t know how the United States Senate can confirm you as a member of one of the most powerful courts in the country.”
Smith then refused to answer whether Trump lost the election.
Senator Blumenthal next asked Smith whether the U.S. Capitol was attacked on January 6, 2021. “I want to be very careful in the language I use, senator, because there are cases that have been filed in the Eighth Circuit where the characterization of that date has been central to the case, and as a judicial nominee, I don’t want to prejudge any of those cases that might come before me,” he responded. Smith began discussing Supreme Court cases that addressed the issue, saying “I believe the language that the Supreme Court has used in the three cases that I just mentioned is that there was a breach of the Capitol.”
Smith dodged answering questions but said that he condemns all the violence that occurred on that day — and again said that he “would use the language of the Supreme Court in those three cases.” Blumenthal was displeased. “I really regret that you don’t have the grit to stand up and speak out on an issue of such fundamental importance, and that you are, in effect, intimidated by the remote prospect that the president of the United States may take umbrage and withdraw your nomination. If you don’t have the courage to tell this committee the truth, you don’t deserve to be on the bench,” he said.
Senator Mazie Hirono addressed this issue as well, asking Smith whether he acknowledges that rioters on January 6 sought to stop the certification of the electoral votes. “I understand that the counting of electoral votes was interrupted on January 6. I want to be very careful in getting too much further beyond that because there is still active litigation,” he said. When she asked whether he would acknowledge that a number of the rioters were convicted and that Trump pardoned them, he responded “I think that is what happened.”
Later, Smith disputed that his answers to these questions were rehearsed, telling Senator Peter Welch that “These are my answers. These are the legally correct answers.” Senator Welch expressed frustration at Smith’s responses, telling him that “What you’re calling legally precise, a lot of people would call politically evasive.” Senator Welch added this:
I was here on January 6. I was here when the mob attacked, when the gun was fired, when the mob was breaking the doors down. I didn’t believe it was happening. And the reason I didn’t believe it was happening is because this is the United States of America, and we believe in the peaceful transfer of power. And we renounce violence as a way to overcome the decision of the American people at the polling booth. But it did happen. And you can’t acknowledge that President Biden won the popular vote. You can’t acknowledge that under our process, he won the election. You can’t say that. I share the apprehension that Senator Blumenthal has, that the nominees who come in here can’t say the obvious. You win some elections, you lose some elections. And you, as a judge, still cannot just say plainly that Biden won and Trump lost.
Justin Smith is a Trump loyalist and the president’s personal lawyer
Senator Durbin addressed Smith’s legal representation of Trump in his opening remarks, noting that he is now being rewarded with a lifetime appointment after proving his loyalty to the president. “Mr. Smith is so loyal to the president, he continues to represent him in two pending cases before the courts,” Senator Durbin said. “Mr. Smith represents President Trump in two lawsuits filed by E. Jean Carroll. This is not a case where the legal system has been weaponized against President Trump, as he and his MAGA allies have repeatedly claimed. Rather, Ms. Carroll is one of dozens of women who’ve bravely come forward to credibly accuse the president of sexual assault. Of course, Mr. Trump infamously bragged about his assault of women.”
Smith serves as the attorney of record for Trump in his effort to have the Supreme Court overturn the $83.3 million civil judgment entered against him in the sexual abuse and defamation case brought by Carroll. In his petition for certiorari to the Court, Smith alleged that Carroll lied about the sexual assault and based her narrative on the storyline of a 2012 Law and Order: SVU episode. Smith egregiously misrepresented the events portrayed in the episode to better match up with Carroll’s account, which Senator Durbin noted. “It’s worth noting there is a Supreme Court rule requiring attorneys to present accurate information,” he said.
Smith also served as Trump’s personal lawyer in Trump v. United States, when the Court held that the president has absolute immunity from criminal prosecution for all “official” actions taken within their constitutional authority. Smith played a central role in the case. In his Truth Social post announcing Smith’s nomination, Trump recognized Smith’s significant contribution, stating that “Justin…played a BIG role in securing a Supreme Court Landmark Victory on Presidential Immunity.”
Senator Adam Schiff focused on this during his questioning of Smith, saying “I believe that a lot of the corruption that we’re seeing in the administration, in the White House, traces back to a single decision of the Supreme Court granting the president immunity, absolute immunity, when it comes to certain core functions of the executive.”
“In the court of appeals, John Sauer, one of the counsel for the president, was asked by court of appeals Judge Pan in the DC Circuit whether under…his theory of the case, a president could order SEAL Team 6 to assassinate a political opponent and not be subject to prosecution for it. Sauer’s answer was, effectively, that’s right. Unless he were impeached first, he would not be subject to prosecution,” Senator Schiff said. Then he asked Smith: “Is that your view as well?”
“I think a similar question was also asked at the oral argument at the Supreme Court a few months later. I think the Supreme Court has now set forth a test in Trump v. United States. It would address that hypothetical situation, which, based on my relationship I might add, I think is outlandish, and I see no reason to think that that hypothetical would ever be a possibility,” Smith said in response.
Senator Schiff pressed Smith on this and asked him a number of other questions related to presidential immunity, including questions about a president using their official position to enrich themselves, about a president demanding money from a media organization in order to approve a merger, and about a president taking bribes to change the country’s policy in the Gulf. Smith repeatedly referred back to the test set forth by the Supreme Court in Trump v. United States and also to United States v. Brewster, which dealt with bribery related to legislators.
“We’re not talking about legislators. We’re talking about the president of the United States, who has immunity now, thanks to your work in part,” Senator Schiff responded. And he concluded with this:
I’m just going to have to conclude here that you don’t want to express your view on it, because I think it’s a shocking view. I think it was a shocking view that John Sauer expressed in the court of appeals. I think it’s a shocking view that you hold, that the president’s authority is so profound that he basically is above and beyond the law — that there’s no remedy for a president who would abuse his power the way we have already seen, and I fear we’ll see in the future. I think the Roberts Court will go down in history — that will be their legacy — as having enabled the worst form of corruption we’ve ever seen in the Oval Office. And you’ll be a part of the team that made that possible.
Senator Hirono also noted Smith’s legal representation of Trump and asked him whether he would recuse himself if a case came before him in which Trump’s personal interests are heavily implicated. Smith said that he would recuse himself from any case he’s been personally involved in, and for any other case he would consult the judicial canons, the appropriate recusal rules, and his colleagues. Senator Hirono cited the Code of Conduct for United States Judges, which says that “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
“I would say that in any case involving President Trump’s personal interests, you should recuse yourself, because it is very clear where your loyalties lie,” she said.
Justin Smith is a right-wing extremist
Senator Hirono also asked Smith about a piece he wrote for Breitbart in 2024 urging conservatives in Missouri to vote for Will Scharf to serve as the state’s attorney general (Scharf lost and is now serving as White House staff secretary). Hirono quoted the piece, specifically the part saying “Republican attorneys general are critical in the fight against the radical left. We need true conservatives to defeat the abortion industrial complex, the lawlessness plaguing blue cities, and the woke ideology invading our schools.”
Senator Hirono asked Smith to define the word “woke,” and Smith responded that the story she cited “was a piece of political advocacy” — adding that “the partisan views or political activity I’ve had before would play no bearing on my role as a judge.” When pressed further to define “woke ideology,” Smith simply said that he wrote the piece in support of his friend. “But as a judicial nominee, I don’t think it’s appropriate for me to start commenting on political views, because as a judge, I would not be, you know, applying those partisan or personal views while I was on the bench.”
“The thing is that this whole idea of woke ideology and DEI — the president has issued an executive order telling all of his administrative agencies to eliminate any support of DEI. And so you’re going to get cases that use terms like woke, or DEI, etc. And so I think it would be good for us to know what you mean by what you wrote, and you’re not going to respond,” Senator Hirono said.
In their letter to the Senate, People For the American Way addressed this quote from Smith’s Breitbart piece, writing that “It is hard to imagine the person who made those statements putting aside his personal feelings to fairly and neutrally decide cases involving abortion care, the Trump administration’s lawless assaults on Democratic-run jurisdictions, or any civil rights principle that MAGA labels as ‘woke.’”
Smith’s specific civil rights record was not discussed very much during today’s hearing, but it is appalling. As Alliance for Justice (AFJ) notes in their report about Smith’s nomination, he has a history of attacking reproductive freedom, vehemently opposing LGBTQ+ rights, and siding with big corporations.
“Justin Smith demonstrated today that he cannot be trusted to uphold the rule of law,” said AFJ President Rachel Rossi in a statement following the hearing. “He has dedicated his career to undermining the Constitution to support Trump’s authoritarian behavior and to hold back the advancement of civil rights. There is every reason to believe that this is exactly how he will act as a judge, and he offered nothing in today’s hearing to suggest otherwise.”
Justin Smith is entrenched in Leonard Leo’s dark money operation
As I previously wrote, Smith is connected to several organizations in Leonard Leo’s orbit, including serving on the boards of American Patriot Fighters, Publius Fund, First Principles Action, and Yorktown Fund all within the last few years. He is also a member of Teneo.
Senator Sheldon Whitehouse walked through some of Smith’s connections to these and other organizations, describing the web of groups as “a pretty remarkable creation presumably designed to mislead.” At the end of his remarks outlining these organizations, he concluded with this:
When we get to you, you’ve got connections with almost all of them. You’ve got connections with the Yorktown Fund. You’ve got connections with the Concord Fund. You’ve got connections with the Lexington Fund. You’ve got connections with Club for Growth Action in Missouri, American Patriot Fighters, First Principles Action, Defend Missouri, Publius Fund, and Teneo Network — all of which get money from the Leonard Leo bug from that operation. So it looks to me like what we have here is somebody who is going to be planted on the court and bide your time until you get a case in which this group of front groups has an interest. And then they will turn up the way they do in the Supreme Court — in a flotilla, a phony front group of amici. And when that happens, I’m here to predict that you will rule for them 100 percent of the time.
Senator Durbin also referenced this in his opening remarks and in his questioning. “Mr. Smith has extensive right-wing political affiliations and ties to dark money entities. One example: In 2023, Mr. Smith served as the treasurer for the Missouri chapter of the Club for Growth, a conservative super PAC. What a coincidence it is, then, that the organization spent thousands of dollars in consulting, provided by Pervinco LLC, an entity that Mr. Smith owned. This apparent self-dealing raises serious ethical questions — not the first in this administration,” Senator Durbin said.
Smith sought to assure senators that he would behave and not bring his partisanship and past advocacy to the bench.
“In every case that I’ve been involved in, some of which do have some political issues, I’ve depended on judges to set aside their personal views and treat my case fairly and impartially, to apply the law and the facts to the case that I’ve brought before them, and to do so without regard to partisan affiliation,” Smith said. “And that’s the type of judge that I would strive to be, to set aside those personal views, and to apply the law and the facts, because that would be my role as a judge — not as a partisan, or as an advocate, as a judge, where any personal views I have would no longer be relevant.”
Justin Smith’s election denial, his legal representation of and loyalty to Trump, his extreme anti-civil rights record, and his deep connections to Leonard Leo’s operation make it impossible to believe that he has any intention of leaving his personal views behind if he is confirmed to a lifetime seat on the Eighth Circuit.
Senators have until next Wednesday, April 22, at 5 p.m. to submit written questions for the record.