Why doesn't Jack Smith charge Trump with insurrection?
Special counsel Jack Smith's report into Donald Trump's investigation into subverting the 2020 election is an atlas of the road not taken — a path to an election Trump never tried to overturn The other leads to the land where the Justice Department was quicker to charge him, the other leads to the land where Trump never tried to overturn the election, the other leads to where the Justice Department was quicker to charge him. The Supreme Court did not postpone the case.
One of the most fascinating untraveled roads is Smith’s accusation of Trump insurrection against the United States. The nation watched as Trump attempted to overturn the election, first through false lawsuits and then by inciting violent riots on January 6, 2021, in a futile attempt to stop the certification of President Joe Biden's victory. If convicted of insurrection, Trump would not be able to return to office, but when Smith sued Trump in August 2023, he did not charge him with insurrection.
Smith's report released early this morning finally explains why. Doing so shows how unprepared the U.S. legal system is for a figure like Trump. The law’s authors simply did not take into account the current president’s attempt to use the federal government’s vast power to reverse the election results.
Much of the roughly 150-page report focuses on Smith's alleged crimes, the evidence behind them, and why he believes he would convict Trump if given the chance to try them. Instead, Smith moved to dismiss the charges in November after Trump won re-election, citing Justice Department rules prohibiting prosecution of a sitting president. Even if he failed to do so, Trump vowed to fire Smith and close the case as soon as he took office. (Smith also dropped charges in a separate case related to Trump's hoarding of classified documents at Mar-a-Lago. His report on that case has not been released because charges against Trump's former co-defendants are still pending. )
Even though the material it contained was terrible, it was also widely known. News reports, the House Jan. 6 committee and Smith's initial and subsequent indictments have laid out how Trump sought to steal an election he knew he had lost — first by filing false lawsuits and pressuring state officials ; secondly by filing false lawsuits and pressuring state officials; and then how to try to steal the election. Then tried to corrupt the Justice Department; next, tried to convince Vice President Mike Pence to reject the electoral votes; and finally incited his followers to attack the Capitol. The evidence is not any less conclusive or frightening because of its familiarity.
Discussions of rebellion charges, however, are new. This suggests that Smith did seriously consider whether the law applied, but concluded that he would have a hard time convicting Trump under it — not because what happened was not an insurrection, but because the law was written so narrowly that So much so that although Trump appears to have violated the spirit of the law, he may not have violated its letter. (No one has been charged with violating the law in more than a century, Smith wrote.)
A conviction for insurrection would have a much greater impact than the convictions Smith did bring on the charges of conspiracy to defraud the United States, obstruction and conspiracy to obstruct, and conspiracy to violate rights. Felons have the right to hold federal office — as Trump will attest on Jan. 20 — but the law states that anyone convicted of insurrection or insurrection “shall not hold any office under the United States.”
But Smith sees some challenges in bringing charges under the law. First, he must prove that what happened on January 6 was an insurrection. As he points out, multiple courts have described these events as “insurrection.” Smith “recognizes why courts have characterized the attack on the Capitol as an 'insurrection,'” but remains concerned about establishing that fact under such a vague and rarely used law. He considered past cases, but they did not provide any guidance on what the legal standard for rebellion was, or how it differed from a riot.
He also found that case law tends to treat rebellion as an attack be opposed to A sitting government, rather than trying to stay in power – is, in political science terms, an autogolpe.
“The (special counsel) office is not aware of any cases in which criminal defendants were charged with insurrection for maintaining power within the government rather than overthrowing or obstructing the government,” Smith wrote. “Applying Section 2383 in this manner would be the first time , which further hampers the prosecution of it even if there is reasonable argument that it may apply, given the other charges available.”
Smith also faced another dilemma. Trump deftly incited his followers to attack the Capitol and suggested he would go with them, only to return to the White House and watch the chaos on television rather than participate in it. (as Atlantic's Editor-in-Chief Jeffrey Goldberg writes that Trump often uses this mafia boss tactic, encouraging his minions to take action but never explicitly alluding to it himself. )
What about sedition? Smith argued that Trump's actions even met the high legal threshold set by the Supreme Court for incitement – “The evidence shows that Mr. Trump could have foreseen the violence, that he had caused it, and that this was favorable to his plan to intervene.” of”. Proving that when it happened, he made a conscious choice not to stop it, but to use it to stall for more time” — but Smith doesn’t have any direct evidence that Trump said all-out violence was his goal, so he’s worried about It would be risky for Trump to bring charges of incitement to insurrection.
Furthermore, Smith could find no examples of prosecutions of defendants who did not actively participate in the conduct. “There appears to have never been a prosecution under this Act against a person who incited, aided, or provided aid or comfort to an insurrection or insurrection,” he wrote. “Therefore, no matter how strong the evidence that he incited or provided aid or comfort to those who attacked the Capitol, Aid and comfort, the application of these theories of responsibility will also be the first.”
This led Smith to conclude that, given the other charges, “pursuing sedition charges was unnecessary.”
But beauty is in the eye of the beholder, and lawyers can only see so much. Smith's decision is understandable, but illustrates why criminal law has always been an unreliable method of holding Trump accountable. Smith's job is to hold Trump accountable to the law, a relatively narrow assignment. While the Justice Department should have acted faster — Smith was only appointed to the case in November 2022 and then moved quickly — the more serious mistake was the Senate’s failure to impeach Trump in his February 2021 impeachment trial Universal condemnation.
As Smith writes in the report in a different context, the purpose of impeachment is different from the purpose of prosecution. “When Congress decides whether to impeach and convict a president, the process does not rely on strict findings of fact and application of the law, nor on the discovery of criminal violations. Rather, the impeachment process is essentially a political remedy designed to in addressing the dangers to governance posed by public officials guilty of “treason, bribery or other high crimes and misdemeanors.”
But some Republican senators, led by Minority Leader Mitch McConnell, believe that voters are so angry at the January 6 attack that Trump is at the end of his tether. Therefore, these senators did not need to risk angering his supporters by voting to convict Trump. The Senate voted 57-43 to convict Trump, falling short of the two-thirds majority needed to convict Trump and bar him from future office.
Two years later, some legal scholars sought to prove that Trump committed insurrection and violated his oath of office under the Fourteenth Amendment. But the court ruled that only Congress could make such a decision and that it would never happen politically. Only the political process—voter choice and impeachment—can clearly prevent Trump from being re-elected as president.