Special Counsel Jack Smith’s report into his investigation of Donald Trump’s 2020 election subversion is an atlas of roads not taken—one to a land where Trump never tried to overturn the election, another where the Justice Department moved more quickly to charge him, and another where the Supreme Court didn’t delay the case into obsolescence.
One of the most beguiling untrod paths is the one where Smith charged Trump with insurrection against the United States. The nation watched Trump try to overturn the election, first through spurious lawsuits and then by instigating a violent riot on January 6, 2021, in a vain attempt to prevent the certification of President Joe Biden’s victory. A conviction for insurrection would have prevented Trump from returning to office, but when Smith indicted Trump in August 2023, he didn’t charge him with insurrection.
Smith’s report, which was released early this morning, finally explains why. In doing so, it shows how the United States legal system is and was unprepared for a figure like Trump. The framers of the law simply didn’t contemplate a sitting president trying to use the vast powers of the federal government to reverse the outcome of an election.
Most of the report, which runs to about 150 pages, focuses on the crimes that Smith did charge, the evidence behind them, and why he believes he would have convicted Trump if he’d had a chance to try them. Instead, Smith moved to dismiss the charges in November after Trump won reelection, citing Justice Department rules that bar the prosecution of a sitting president. Even if he had not done so, Trump had vowed to fire Smith and close the case immediately upon taking office. (Smith also dropped charges in another case related to Trump’s hoarding of classified documents at Mar-a-Lago. His report on that case was not released, because charges are still pending against Trump’s erstwhile co-defendants.)
Though the material included is damning, it’s also mostly known. News reports, the House January 6 committee, and Smith’s initial and superseding indictments had already laid out how Trump tried to steal an election that he knew he had lost—first by filing bogus lawsuits and pressuring state officials; then by attempting to corrupt the Justice Department; next by trying to convince Vice President Mike Pence to reject electoral votes; and finally by instigating his followers to attack the Capitol. The evidence is no less conclusive or horrifying for its familiarity.
The insurrection-charges discussion, however, is new. It shows that Smith did seriously consider whether the law applied but concluded he would struggle to convict Trump under it—not because what happened was not an insurrection, but because the laws were written too narrowly, such that although Trump appears to have violated the spirit of the law, he may not have broken its letter. (Smith writes that no one has been charged with violating the law in question for more than a century.)
A conviction of insurrection would have been far more consequential than convictions on the charges of conspiracy to defraud the United States, obstruction and conspiracy to obstruct, and conspiracy against rights, which Smith did bring. Felons are entitled to hold federal office—as Trump will prove on January 20—but the law stipulates that anyone convicted of insurrection or rebellion “shall be incapable of holding any office under the United States.”
But Smith saw several challenges to bringing charges under the law. First, he would have had to prove that what happened on January 6 was an insurrection. As he notes, multiple courts have described the events as an “insurrection.” Smith “recognized why courts described the attack on the Capitol as an ‘insurrection,’” but was still worried about establishing this fact under such an obscure and little-used law. He considered past cases, but they didn’t offer any guidance on what the legal standard for an insurrection is, or how it is different from a riot.
He also found that case law tended to treat insurrection as an attack against a sitting government, rather than an attempt to remain in power—an autogolpe, in political-science terms.
“The Office [of Special Counsel] did not find any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside,” Smith writes. “Applying Section 2383 in this way would have been a first, which further weighed against charging it, given the other available charges, even if there were reasonable arguments that it might apply.”
Smith faced yet another complication. Trump cleverly instigated his followers to attack the Capitol, and suggested that he was coming with them, but he instead returned to the White House and watched the chaos unfold on TV, rather than take part. (As The Atlantic’s editor in chief, Jeffrey Goldberg, has written, Trump often uses this mafia-boss tactic of encouraging his minions to act without ever explicitly implicating himself.)
What about inciting an insurrection? Smith saw reasonable arguments that Trump’s actions met even the high legal bar the Supreme Court has set for incitement—“the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay”—but Smith didn’t have any direct evidence of Trump saying the full scope of violence was his goal, so he worried that bringing charges against Trump for inciting an insurrection would be risky.
Besides, Smith couldn’t find any examples of prosecutions where a defendant was charged who didn’t actively participate in the act. “There does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection,” he wrote. “Thus, however strong the proof that he incited or gave aid and comfort to those who attacked the Capitol, application of those theories of liability would also have been a first.”
This led Smith to conclude that, given the other charges, “pursuing an incitement to insurrection charge was unnecessary.”
But necessity is in the eye of the beholder, and lawyers can only see so much. Smith’s decision is understandable but shows why criminal law was always an unreliable method for holding Trump to account. Smith’s remit was to hold Trump accountable to the law, a relatively narrow task. And although the Justice Department ought to have moved faster—Smith was appointed to take on the case only in November 2022 and then acted with speed—the more consequential error was the Senate’s failure to convict Trump at his impeachment trial in February 2021.
As Smith writes in a different context in his report, impeachment has a different aim than prosecution. “When Congress decides whether a President should be impeached and convicted, that process does not depend on rigorously adjudicating facts and applying law, or on finding a criminal violation. Instead, the impeachment process is, by design, an inherently political remedy for the dangers to governance posed by an office holder who has committed ‘Treason, Bribery, or other high Crimes and Misdemeanors.’”
But some Republican senators, led by Minority Leader Mitch McConnell, believed that voters were so irate about the January 6 attacks that Trump was a spent force. As a result, these senators didn’t need to risk the ire of his supporters by voting to convict Trump. The Senate voted 57–43 to convict, short of the two-thirds majority required to convict Trump and then bar him from future office.
Two years later, some legal scholars tried to make the case that Trump had committed an insurrection and broken his oath of office under the Fourteenth Amendment. But courts ruled that only Congress could make such a determination, which was politically never going to happen. Only political processes—voters’ choices and impeachment—could have definitively prevented a second Trump presidency.
The post Why Didn’t Jack Smith Charge Trump With Insurrection? appeared first on The Atlantic.
