For 31 months, the Democrats and their allies in the corporate media have characterized the Capitol Hill chaos that erupted on Jan. 6, 2021 as an “insurrection.” The House of Representatives reinforced this version of events by impeaching then-President Trump for “incitement of insurrection.” The Senate acquitted him, of course. Nonetheless, the House Select Committee to Investigate the January 6th attack referred the case to the Justice Department for further investigation. Consequently, it was something of a surprise that the formal indictment unsealed last Tuesday by Special Counsel Jack Smith failed to charge Trump with fomenting insurrection.
This must have been particularly frustrating for those who have long insisted that the 14th Amendment prohibits Trump from serving a second presidential term. The primary purpose of the 14th Amendment was, of course, to grant citizenship to emancipated slaves. However, it also includes language in Section 3 that bars anyone who has “engaged in insurrection or rebellion against the [United States]” from holding office in the federal government. This passage was included to prevent former officials of the Confederacy from returning to Congress and creating more mischief. The problem with using this clause against Donald Trump is explained by constitutional law professor Josh Blackman in Reason:
In some legal circles, advocates contend that it is so obvious that Trump committed insurrection. Yet, the special counsel, after studying the issue for months, opted not to bring that charge. Why? Perhaps Smith determined that he could not prove beyond a reasonable doubt that Trump engaged in insurrection. Or maybe Smith determined there were considerable legal questions about how to obtain such a conviction – most critically, was there an actual insurrection? (Yes, for the Supreme Court to knock Trump off the ballot, you need five votes to say that there was an insurrection as a matter of law – good luck with that!)
It evidently never occurred to the victims of Trump Derangement Syndrome that “insurrection” is a legal term with an actual definition in the U.S. Code. In order to convict former President Trump of this crime, the Special Prosecutor must prove that he fits the following description in 18 U.S.C. § 2383: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” Anyone convicted of insurrection can expect a long prison term and a hefty fine. It would be difficult to convict Trump under this statute, considering that not one participant in the Jan. 6 riot has been charged with insurrection.
A few have been charged with “seditious conspiracy.” Others are accused of “assaulting, resisting, or impeding officers.” The vast majority have been charged with far less serious offenses, such as “entering or remaining in a restricted federal building or grounds.” This behavior was inexcusable, but it certainly did not rise to the level of insurrection. Thus, Jack Smith was under such pressure to charge Trump for something relating to Jan. 6 he was reduced to indicting him for “lying” about the 2020 election. Yet, such criminalization of false statements, as law professor Jonathan Turley writes in the Hill, was declared unconstitutional 11 years ago by the Supreme Court in United States v. Alvarez:
Under our current understanding of free speech, Democrats ranging from Hillary Clinton to Rep. Jamie Raskin (D-Md.) were engaged in protected speech when they called Trump illegitimate and challenged the certification of his win, even though they knew that their challenges were completely meritless. Yet this indictment suggests that Trump engaged (and indeed still engages) in criminal conduct by insisting that the 2020 election was stolen. Presumably, it also follows that tens of millions of Americans holding that same view are also involved in spreading the same false claims underlying the indictment.
But Smith need not be concerned about such trivia as the First Amendment or Supreme Court precedent. He was appointed Special Counsel primarily to keep Trump immured in a legal web from which it will be time consuming and costly to extricate himself. Smith will have very little difficulty accomplishing that in a trial presided over by U.S. District Court Judge Tanya Chutkan, an Obama appointee notorious for handing down harsher sentences to Jan. 6 defendants than recommended by Justice Department prosecutors. Moreover, because the trial will be held in Washington, DC — where 92.2 percent of the 2020 presidential vote went to Biden — the jury pool will certainly share Judge Chutkan’s prejudice. (READ MORE: Final Showdown for Trump: A DC Jury Will Convict Him)
That, in the end, is the main reason Smith didn’t indict Trump for insurrection. The charge would be all but impossible to prove and a conviction would almost certainly be overturned on appeal. Indeed, before his appointment as Special Counsel in the Trump case, Smith was best known for the Supreme Court’s unanimous reversal of the corruption conviction he secured against former Virginia Gov. Robert McDonnell. Why go through all that trouble? Smith’s indictment, combined with equally specious charges brought by other partisan prosecutors, will ensure that Donald Trump is forced to spend so much time and money defending himself in court that he can’t possibly wage an effective presidential campaign.
That’s what Jack Smith’s masters in the White House and the Department of Justice want from him. They know Jan. 6 wasn’t an insurrection, but they do fear that Trump and his supporters may well stage a peaceful rebellion at the ballot box in November of 2024.
READ MORE from David Catron:
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