The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

What The Trump Indictment Left Out

Special Counsel Smith avoided charges of insurrection, seditious conspiracy, and incitement.


I have now had a chance to read the entire 45-page indictment in United States v. Donald J. Trump. Much of this information has been published in drips and drabs over the past two years. But reading through the entire chronology, from start to finish, was a very different experience.

Here, I would like to highlight what Special Counsel Jack Smith left out.

The most significant omission was that Trump was not indicted for insurrection, 18 U.S.C. § 2383. This decision was not particularly surprising, since none of the January 6 defendants have been charged with insurrection. Stuart Rhodes and the Proud Boys were convicted of seditious conspiracy. Federal prosecutions for insurrection are extremely rare, and there were many open questions about how to obtain a conviction.

The decision not to seek an indictment for insurrection has several immediate consequences. First, the punishment for violating Section 2383 includes being "incapable of holding any office under the United States." Seth Barrett Tillman and I wrote in early 2020 that even if Trump were convicted of violating this statute, he could not be disqualified from serving a second term as President. Now that Smith has not indicted Trump for violating this statute, we will not need to decide the scope of Section 2383.

Second, if Smith had indicted Trump for violating Section 2383, he would have had to lay out in a systematic fashion why Trump's conduct amounted to insurrection. Regardless of whether Trump was convicted of violating that statute, state election boards could have relied on that indictment as the predicate to disqualify Trump. In other words, there would have been a common nucleus of operating facts for a Section 3 claim against Trump. Smith's indictment could have been copied-and-pasted nationwide. But we do not have those facts. Indeed, based on my quick read, the word "insurrection" appears nowhere in the statute.

Third, what lessons should we draw from the fact that Smith did not indict Trump for insurrection? 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!) Perhaps Smith engaged in a political calculus, and determined that he didn't need to wade into murky insurrection waters. There were so many other ways to obtain a conviction. Indeed, I speculated that Smith's decision to avoid "distracting fights" would counsel against bringing a Section 2383 charge. Ultimately, we don't know why Smith brought the charges he did. Everyone who is gung-ho on disqualifying Trump for insurrection should hesitate. But they won't, of course. They'll say that a criminal prosecution, with the full panoply of due process, requires a much higher burden of proof than a civil disqualification proceeding. Section 3 is the new Emoluments Clause.

Now, let's flash back to January 13, 2021. The House of Representatives adopted one article of impeachment:"incitement of insurrection." The precise contours were left deliberately vague, but it embraced both claims of insurrection and incitement. Once again, the fact that Smith chose not to indict Trump for insurrection casts at least some doubt on the decision to impeach Trump for insurrection. Of course, the counter argument is that the burden of proof with an impeachment is lower, there are no due process protections, and impeachment can be a political process. We hashed out all those arguments in 2021. But would about incitement? Why didn't Smith charge Trump with inciting violence?

If you read through the indictment, there are many allegations that seem perfectly suited for an incitement charge. Here is a sampling:

When that failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.

On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, "Big protest in D.C. on January 6th. Be there, will be wild!" Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

Within hours of the conversation [on January 1], the Defendant reminded his supporters to meet in Washington before the certification proceeding, tweeting, "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"

That same day [January 5], the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant's favor, including issuing the following Tweet . . . .

On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the President might do so . . . .

[On January 6 at 11:56 a.m.] The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to obstruct the certification.

Finally, after exhorting that "we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore," the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress "the kind of pride and boldness that they need to take back our country."

During and after the Defendant's remarks, thousand of people marched toward the Capitol.

Judge Mehta, in a detailed opinion, refused to dismiss the civil incitement lawsuits against Trump. Mehta also dealt with all of the First Amendment concerns that I (and others) raised during Trump's impeachment trial. Right or wrong, Smith could have relied on Mehta's First Amendment analysis to indict Trump for criminal incitement. But Smith didn't? Why? Maybe he thought the First Amendment analysis would not hold up on appeal to the Supreme Court. Maybe he thought that he may not be able to obtain a criminal conviction with proof beyond a reasonable doubt. Or Smith worried that criminalizing what was, to some at least, a political rally, was too risky. I'll pose a question I raised earlier: if the special counsel declined to bring an incitement charge, was this the right charge to bring in a court of impeachment? Same caveats as earlier.

Finally, six facts in particular were left out: the names of six un-indicted co-conspirators. The Washington Post speculates that Rudy Giuliani was #1, John Eastman was #2, Sidney Powell was #3, Jeff Clark was #4, Kenneth Chesebro was #5, and #6 remains unknown. Each of these five (six) individuals faces considerable legal exposure, and may still be indicted. We will see if they testify against Trump to avoid prosecution. There are also a number of lawyers mentioned throughout the report that worked in the Department of Justice and in Trump's orbit that have exposure. Smith is not done here.

I'll have much more to say about the prosecution in due course. These are only my preliminary thoughts.

Update: In the New York Times, Ryan Goodman and Andrew Weissmann opine on Smith not bringing an insurrection charge:

Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.