Jack Smith Testimony Blocked in Trump BBC Lawsuit
WASHINGTON — The Justice Department has refused to allow former special counsel Jack Smith to be questioned by the BBC in President Donald Trump’s $10 billion defamation lawsuit against the broadcaster, setting up a fresh legal clash over how much of a former prosecutor’s work can be exposed in private litigation. The refusal, contained in a letter filed on Monday night, November 2, and reported on Tuesday, November 3, as voting was underway in the midterm elections, does not decide the outcome of the lawsuit itself. No election result or winner is claimed in this report: results were not yet known at the time of writing, and this court dispute is separate from the counting of ballots.
The BBC wants to depose Smith — to question him under oath before trial — about evidence he gathered while investigating Trump’s efforts to contest the 2020 election, and about the events surrounding the attack on the United States Capitol on January 6, 2021. The broadcaster argues that Smith’s material is relevant to its defence. Trump sued the BBC in December over a documentary that, he alleges, combined two separate parts of a speech he gave before the Capitol attack in a way that falsely suggested he encouraged the violence. The BBC disputes that characterisation, and it is seeking evidence it says could bear on what Trump said, what he intended, and how his words were understood.
The Justice Department, in a letter from lawyer Pardis Gheibi, rejected the request. It said the testimony sought would be subject to grand jury secrecy, classified information privilege, law enforcement privilege and executive privilege. It also argued that Smith’s knowledge of January 6 was secondhand, and that any genuine need for such secondhand knowledge could not outweigh the department’s interest in preserving the confidentiality of protected material. In the department’s view, Smith’s extensive public testimony and his published report already provide an adequate substitute for a private deposition.
That position now sits in direct tension with an earlier ruling in the same case. Magistrate Judge Enjoliqué Lett has already ruled that Smith holds information relevant to Trump’s January 6 speech and to the subsequent attack on the Capitol. A finding of relevance, however, is not the same as an order compelling testimony regardless of privilege, and it does not by itself resolve whether a former senior official can be forced to answer questions about work that may touch on grand jury proceedings, classified material or internal deliberations. The next stage of the dispute will therefore test where the line falls between relevance and privilege.
Why Jack Smith’s Testimony Was Blocked
Federal rules require current and former government employees to obtain permission from their agency before testifying in court cases about matters learned in office. The rule exists to protect confidential information, to prevent the disclosure of investigative material, and to ensure that an agency can assess whether testimony would harm ongoing work or national security. It also creates a recurring problem in high-profile cases: a witness may be willing to testify, a party may argue that the testimony is essential, and the agency may still refuse.
In this case, the Justice Department added a second argument drawn from the law governing high-ranking officials. It said the BBC had not shown the extraordinary circumstances needed to justify deposing a former senior official, a standard that courts apply because senior officials’ time and knowledge are often sought for reasons that go beyond what only they can provide. The department pointed to Smith’s prior public appearances, including testimony before the Senate Judiciary Committee last month, and to his public report, as sources that already make much of the relevant information available without a new deposition.
The BBC’s position, as described in court filings and reporting, is different. Its lawyers argue that a public report and congressional testimony, however detailed, are not a substitute for questioning a witness under oath in the specific context of this lawsuit, where the precise questions are about the documentary, about Trump’s speech, and about the broadcaster’s defence that its editing did not create a false impression. The broadcaster’s lawyer has argued that the BBC is entitled to that deposition, even if questions of admissibility — whether particular answers could later be used at trial — can be argued separately.
Trump’s own lawyers have taken a position closer to the department’s on this point, arguing that Smith had no personal knowledge of Trump’s speech or state of mind, and that his public report and congressional testimony were sufficient. That alignment is notable, because the Justice Department is not ordinarily a party to a president’s private defamation suit. Here, however, it is the custodian of the former special counsel’s work, and its decision on permission can shape what evidence either side can obtain, regardless of which side the department’s reasoning appears to help.
The $10 Billion BBC Case and Its Discovery Fight
The lawsuit itself arises from a BBC documentary, titled in reporting as Trump: A Second Chance?, which examined Trump’s return to office. Trump alleges that the programme’s editing created a misleading impression by joining parts of his January 6 speech together, and he accuses the broadcaster of defamation and of deceptive and unfair trade practices. The BBC has turned the case into an opportunity to seek records and testimony through discovery, the pre-trial process in which each side can obtain documents and depositions from the other and, in some circumstances, from third parties.
Discovery in this case has already produced sharp exchanges. In October, Judge Lett ordered Trump himself to sit for a deposition by December 11, or face sanctions up to dismissal of his lawsuit, unless the discovery period is extended by the presiding judge. The broadcaster’s lawyers had complained that Trump had delayed his appearance in his own lawsuit, and they want his deposition completed before discovery is scheduled to end on December 18. That deadline, and the threat of sanctions attached to it, underscores how seriously courts treat a plaintiff’s obligation to participate in the case he filed.
At the same October hearing, the question of Smith’s testimony was left unresolved. Smith had sought permission from the Justice Department, but had not yet received an answer, and the judge ordered the department to respond by November 2. The letter filed on Monday night was that response, and it was a refusal. Whether the BBC now asks the judge to overrule the department, whether Smith himself seeks a different route, or whether the parties negotiate a narrower form of testimony — for example, limited to non-privileged topics — remains to be seen.
The dispute also illustrates a broader tension in American law between transparency and confidentiality after a special counsel investigation. Special counsels are appointed to investigate matters of exceptional public importance with a degree of independence, and their reports are often published in full or in large part. Yet the underlying investigative material — grand jury testimony, classified assessments, internal deliberative notes — remains protected long after the report is public. Courts must therefore decide, case by case, how much of that underlying material can be revisited when a later lawsuit raises overlapping questions.
Both Sides of the Privilege Argument
Supporters of the department’s position argue that the privileges it cites are not technicalities, but safeguards for the criminal justice system itself. Grand jury secrecy protects witnesses who testify in secret, encourages candour, and prevents targets from learning the direction of an investigation before charges are decided. Classified information privilege protects sources and methods. Law enforcement and executive privilege protect candid internal advice and the ability of officials to discuss sensitive decisions without fear that every discussion will later be dissected in civil litigation. From this perspective, allowing a deposition in a private defamation case to range over special counsel material would set a precedent that could chill future investigations.
Supporters of the BBC’s position argue that privileges must be asserted specifically, not as a blanket bar, and that a court — not an agency alone — should decide whether particular questions intrude on protected material. They note that Smith has already testified publicly to Congress, that his report is public, and that the judge has already found his information relevant. From this perspective, the department’s reliance on secondhand knowledge is also contested: a prosecutor who reviewed extensive evidence, interviewed witnesses and assessed intent may not have been present at an event, but may still hold relevant knowledge about how evidence was interpreted and what conclusions were drawn.
Neither argument can be resolved by slogan. The judge will have to weigh, in concrete terms, what questions the BBC actually wants to ask, what answers would require disclosure of grand jury or classified material, and whether those questions can be narrowed to avoid protected areas while still allowing the broadcaster to present its defence. That kind of line-drawing is common in discovery disputes, but it is unusually sensitive here because the underlying events — a presidential election, a Capitol attack, and a subsequent prosecution — remain politically contested.
There is also a practical dimension. If Smith were deposed, his testimony could become a major public event in its own right, quoted and debated far beyond the courtroom. If he is not deposed, the BBC will have to build its defence from public records, from Trump’s own deposition, and from other witnesses. Either outcome will affect the shape of the trial, if the case reaches one, and will affect public understanding of a lawsuit that is already about how a public figure’s words were presented to the public.
What Happens Next in Washington
The immediate next steps are procedural, but they matter. The BBC may file a motion asking Judge Lett to compel Smith’s testimony or to review the department’s privilege claims question by question. The Justice Department may defend its refusal in full, or it may offer a compromise, such as written answers on limited topics. Trump may be deposed by December 11 under the existing order, and discovery is scheduled to close on December 18, unless extended. Each of those dates will bring the case closer to a decision on whether it proceeds to trial, settles, or is dismissed.
For readers following the case on Election Day, it is worth keeping the different tracks separate. Voters were deciding control of Congress, with all 435 House seats and 35 Senate seats at stake. Courts in Washington were, at the same time, deciding preliminary questions in cases that began long before this election cycle. The BBC lawsuit is one of those cases: it concerns a documentary, a speech from 2021, and an investigation that concluded before the current election. Its timetable is driven by court orders, not by polling hours, and its outcome will not be determined by who wins any race on November 3.
That separation is also a reminder of why privilege disputes can feel frustrating to follow. The public can read a report, watch congressional testimony, and hear a judge describe material as relevant, and still be unable to hear the underlying testimony itself. That gap is not necessarily a sign of concealment; it is, in part, the design of a system that tries to protect the secrecy of criminal investigations while still allowing civil cases to be fairly tried. Whether that balance has been struck correctly in this instance is precisely what the court will now have to decide.
Until then, the position is clear on the record: the BBC wants Smith’s testimony, the Justice Department has refused permission, the judge has found his information relevant, and the lawsuit continues toward its December discovery deadlines. What changes next will depend not on political argument outside the courtroom, but on filings, privilege logs and rulings inside it — the slow, document-by-document work that often decides high-profile cases long before any jury is seated.
Sources
USN reviewed reporting from multiple outlets for this story. Read more from Washington Sun, Britannica and Particle.