The Justice Department has refused to authorise former special counsel Jack Smith to be deposed in President Donald Trump's $10 billion defamation lawsuit against the BBC, blocking testimony the broadcaster sought about the investigation into Trump's efforts to contest the 2020 election. The DOJ bars Jack Smith decision, set out in a letter filed on Monday night, November 2, 2026, turns a high-profile media lawsuit into a test of how far grand-jury secrecy and executive privilege can shield a former prosecutor.

The BBC wants to question Smith about evidence gathered while he investigated Trump's efforts to overturn the 2020 result, to test whether Trump's speech on January 6, 2021, helped cause the violence at the Capitol. The department said no, arguing that his testimony could expose grand-jury secrets and classified information, that his January 6 knowledge was secondhand, and that his public testimony and written report were adequate substitutes.

The refusal matters because Smith led that investigation. If the BBC cannot question him, it must build its case from the public record.

Key Points

• The Justice Department refused to authorise Jack Smith to be deposed in Trump's $10 billion BBC defamation lawsuit.
• DOJ lawyer Pardis Gheibi cited grand-jury secrecy, classified information, law-enforcement privilege and executive privilege.
• The department said Smith's January 6 knowledge was secondhand and that no extraordinary circumstances justified his testimony.
• The BBC wants Smith's evidence to test whether Trump's January 6 speech helped cause the Capitol violence.
• Magistrate Judge Enjoliqué Lett had already ruled Smith holds relevant information and ordered Trump to be deposed by December 11.

What Happened

In a letter filed on Monday night, November 2, 2026, DOJ lawyer Pardis Gheibi set out a series of objections that, together, amount to a broad claim of protection for a former special counsel's work. First, she warned that Smith's testimony could expose grand-jury secrets and classified information. Grand-jury proceedings are secret by law, and questioning Smith risked revealing material that cannot lawfully be disclosed.

Second, the department invoked law-enforcement privilege and executive privilege, which protect confidential deliberations and law-enforcement material from disclosure. It argued they apply here because Smith's testimony would reach into prosecutorial decision-making and advice within the executive branch. Third, it challenged the need for his testimony at all, describing his January 6 knowledge as secondhand and pointing to his extensive public testimony and report as adequate substitutes, with no extraordinary circumstances shown.

Smith had agreed to testify, and testified before the Senate Judiciary Committee last month. The refusal rests not on his unwillingness, but on the institution's judgement that authorising his deposition would cross lines protecting the criminal justice process.

Background/Context

Trump sued the BBC in December over a documentary that combined two parts of his January 6, 2021, speech at the Ellipse. He alleges that the edit falsely suggested he encouraged the attack on the Capitol that followed. The BBC's case depends on the context of that day and on whether the edited sequence materially misrepresented what Trump said and did.

Smith matters because, as special counsel, he investigated Trump's efforts to contest the 2020 election. The BBC wants to test cause and effect: did the speech help cause the violence, or did the edit create a misleading impression?

Magistrate Judge Enjoliqué Lett has already weighed in on Smith's relevance, ruling that he holds relevant information. In a separate order, she ordered Trump himself to sit for a deposition by December 11, with a discovery deadline of December 18 and possible sanctions, including dismissal, if he fails to comply. Only one of the two is now blocked by his former employer.

Jack Smith BBC Lawsuit: Why the DOJ Says No

The Jack Smith BBC lawsuit fight turns on the Touhy rule, the long-standing regulation that requires a government employee to obtain departmental authorisation before testifying about official matters. The department's letter is, in effect, a refusal of that authorisation, resting on the view that the costs of testimony outweigh its value to this civil case.

Grand-jury secrecy is the department's strongest card: federal rules make grand-jury material secret, with only narrow exceptions, and a lengthy deposition about an investigation that relied on grand-jury process would inevitably press toward material Smith cannot disclose. Classified information is a second barrier, and privilege claims cover investigative techniques and confidential advice at the highest levels. The BBC will likely answer that public testimony is no substitute for cross-examination, and that relevance, already found by the judge, should carry the day.

Reactions/Quotes

The department's position, in Gheibi's letter, is that Smith's January 6 knowledge was secondhand and his public testimony and report were adequate substitutes, with no extraordinary circumstances shown. It presents the refusal as a judgement on necessity, not on Smith's credibility.

The BBC's position is that Smith's evidence is central to testing causation; without him, it must rely on documents and other witnesses. Smith himself had agreed to testify, so the refusal does not reflect his reluctance. Judge Lett's rulings signalled that both sides' testimony matters, and whether she accepts the department's arguments will determine the next phase.

Why It Matters

The case matters for press freedom: it tests whether a broadcaster can be held liable for billions over editing a political speech. A Trump win raises legal risk for condensing a politician's words; a BBC win reinforces the actual-malice protection for reporting on public figures. It is also a precedent on compelling former prosecutors to testify about official work.

What Happens Next

The immediate question is whether Judge Lett accepts the refusal or orders Smith to testify under conditions, such as a deposition limited to specific topics, with grand-jury and classified material excluded and a protective order in place. Trump's own deposition is the other near-term deadline: he must sit for questioning by December 11, and the court has warned of possible sanctions, including dismissal, if he fails to comply. Beyond December, the case moves toward summary judgement or trial.

Frequently Asked Questions

Why did the Justice Department block Jack Smith's testimony?

It said his testimony could expose grand-jury secrets and classified information, was subject to privilege, and was unnecessary because his knowledge was secondhand.

What does the BBC want to ask Jack Smith?

It wants evidence from the 2020-election investigation, to test whether Trump's January 6 speech helped cause the Capitol violence.

Did Jack Smith refuse to testify?

No. Smith had agreed to testify. The refusal came from the Justice Department, which declined to authorise his deposition.

What did the judge already decide about Smith and Trump?

Judge Lett ruled Smith holds relevant information and ordered Trump deposed by December 11, with possible sanctions including dismissal.

What is Trump's lawsuit against the BBC about?

Trump sued over a documentary combining two parts of his January 6, 2021, Ellipse speech, alleging it falsely suggested he encouraged the attack. He seeks $10 billion.

Related coverage: Trump's Wall Street Journal lawsuit dismissed with prejudice, Grand jury declines to indict Cassidy Hutchinson in January 6 case, and Trump backs Blakeman in final New York push before Election Day.