Donald Trump nearly faced criminal charges of “rebellion or insurrection” for inciting the violent riot at the U.S. Capitol building on Jan. 6, 2021, but Justice Department special counsel Jack Smith ultimately decided against it.
Smith’s final report, released by the DOJ just after midnight Tuesday, gave fresh insight into the special counsel’s internal deliberations over how they ultimately chose to prosecute Trump.
Namely, the report conclusively answered why Trump wasn’t charged for personally directing his supporters to attack the Capitol building — an event that threatened the lives of legislators and injured dozens of police officers.
Halfway into the 137-page report, Smith described how prosecutors considered criminal charges holding Trump directly responsible for the attacks but concluded it would add too much “risk” to their case.
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“The office recognized why courts described the attack on the Capitol as an ‘insurrection,’ but it was also aware of the litigation risk that would be presented by employing this long-dormant statute,” he explained.
One barrier was that Trump didn’t neatly fit into the widely recognized definition of an insurrectionist leading a rebellion from the outside. Prosecutors relied on court rulings related to Puerto Rican independence fighters, Russian-backed separatists in eastern Ukraine and Liberian revolutionaries.
“In case law interpreting ‘insurrection’ in another context, one court has observed that an insurrection typically involves overthrowing a sitting government, rather than maintaining power, which could pose another challenge to proving beyond a reasonable doubt that Mr. Trump’s conduct on January 6 qualified as an insurrection given that he was the sitting president at that time,” Smith observed.
Still, prosecutors made clear that they felt Trump’s behavior fit the description.
“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 the Office did not develop direct evidence — such as an explicit admission or communication with co-conspirators — of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6,” Smith wrote.
Prosecutors anticipated they would have to overcome the definition of “incitement” established by a 1969 Supreme Court decision that determined First Amendment free speech rights do not protect actions “directed to inciting or producing imminent lawless action.”
The special counsel’s office pointed to several criminal cases involving Jan. 6 rioters during which federal judges effectively concluded that the attack amounted to an insurrection.
As U.S. District Judge James E. Boasberg wrote in a case involving former New York Police Department Officer Sara Carpenter, who joined the fray and carried a tambourine into the Capitol: “What occurred on January 6 was in fact a riot and an insurrection, and it did in fact involve a mob. The terms to which defendant objects are thus accurate descriptors.”
However, prosecutors realized that no Jan. 6 case had formally applied 18 U.S. Code § 2383, sometimes referred to as the Insurrection Act, against rioters. That meant the special counsel’s office would have to leverage that law for the first time, then use it against what prosecutors considered that day’s primary agitator. In the report, Smith noted that “cases interpreting Section 2383 are scarce and arose in contexts that provided little guidance regarding its potential application in this case.”
“To establish a violation of Section 2383, the office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an ‘insurrection against the authority of the United States or the laws thereof,’ and then prove that Mr. Trump ‘incite[d]’ or ‘assist[ed]’ the insurrection, or ‘g[ave] aid or comfort thereto,’” Smith wrote.
The final report cites a 2022 paper by Florida State University law school professor Alexander Tsesis that discusses “the multifaceted doctrinal complexity of prosecuting incitement to insurrection.”
Smith decided against employing a rarely invoked criminal statute, and the rest of the report makes clear what the competing factors were: Prosecutors were building a historic case against a prominent politician running for reelection with a looming election year deadline that could interfere with the case.
“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. The few relevant cases that exist appear to be based on a defendant directly engaging in rebellion or insurrection, but the office’s proof did not include evidence that Mr. Trump directly engaged in insurrection himself. 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,” Smith wrote.
Overnight, Trump poked at the DOJ for releasing the report while most Americans were asleep and derided the special counsel as “deranged.”
“Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!” Trump posted on Truth Social at 1:41 a.m.
Smith’s report extensively justified his office’s approach to the case, stressing that prosecutors were not guided by politics and were merely applying the laws as they’d do against anyone else — that is, until Trump’s presidential election win in November derailed what would have been a strong prosecution.
“The department’s view that the Constitution prohibits the continued indictment and prosecution of a president is categorical and does not turn on the gravity of the crimes charged, the strength of the government’s proof, or the merits of the prosecution, which the office stands fully behind,” Smith wrote.
“Indeed, but for Mr. Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
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Jose Pagliery is a reporter at NOTUS.
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