Jack Smith Explains Why He Did Not Charge Trump With Insurrection
Attorney General Merrick Garland has released Volume I of Jack Smith’s report, which focuses on the January 6 prosecution of Trump. Smith addresses one of the lingering questions: why did he not charge Trump with violating the federal insurrection statute (18 U.S.C. § 2383). In early 2021, Seth Barrett Tillman and I wrote an article anticipating a prosecution based on Section 2283, but that case would never come.
First, Smith explains that there was no clear definition under federal law for an “insurrection.” He acknowledges that the Colorado Supreme Court found that the attack on the Capitol was an insurrection as that term was used in Section 3. Likewise, some federal courts in D.C. described the attacks as an insurrection. “These cases, however, did not require the courts to resolve the issue of how to define insurrection for purposes of Section 2383, or apply that definition to the conduct of a criminal defendant in the context of January 6.”
During the Section 3 debates, Will Baude, Mike Paulsen, and many others, thought it was perfectly clear what an insurrection was, and that January 6 was clearly an insurrection. Smith did not think the issue was so clear. Seth Barrett Tillman and I also did not take a position on this question.
Second, Smith did not think there was enough authority to distinguish an insurrection from a riot:
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. As to the first element under Section 2383-proving an “insurrection against the authority of the United States or the laws thereof’-the cases the Office reviewed provided no guidance on what proof would be required to establish an insurrection, or to distinguish an insurrection from a riot.
Third, Smith recognized that an insurrection usually involves an attempt to overthrow a sitting government, but on January 6, Trump was President of that government.
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. . . . The Office 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. 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.
In November 2023, Rob Leider argued that the President cannot comm
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