In the latest indictment of Donald Trump by special counsel Jack Smith, there are several outrages, but one stands out as the worst. In the section titled “The Defendant’s Exploitation of the Violence and Chaos at the Capitol,” Smith waves the bloody shirt. However, it’s important to note that Smith intends to try Trump for the Capitol riot despite not charging him directly for it. There are no charges of rioting, criminal incitement, seditious conspiracy, insurrection, or any kind of violent crime against Trump. These allegations would have been untenable. Smith’s indictment, much like the House January 6 committee, hides crucial information. Trump explicitly called for a peaceful march on the Capitol in his Ellipse speech, a fact that both the prosecutor and the committee conveniently omit.
In American constitutional law, violence is the clear line. The First Amendment protects aggressive, obnoxious, and even false political speech. The appropriate response to such speech is more speech, not criminal prosecution. The law forbids solicitation of violent crimes and conspiracies to use force only when the intention to cause real and imminent violence is evident. Trump cannot be charged with soliciting violence based on the events of January 6.
Despite charging over a thousand people in connection with the Capitol riot, the Justice Department did not indict Trump or name him as an unindicted co-conspirator. They vigorously opposed any attempt by January 6 defendants to shift blame onto Trump. However, Smith seeks to inject the Capitol riot into a case where he has not charged Trump for the Capitol riot. The Capitol riot is the prism through which Smith wants the public to view the charged case against Biden’s 2024 campaign rival.
During his post-indictment press conference, Smith barely mentioned the charges he had filed against Trump. Instead, he emphasized the attack on the Capitol as an assault on the government. However, he does not charge Trump with a crime related to the violent attack. It is only noted at the end of the indictment as “exploitation.” Smith details how individuals violently attacked law enforcement officers while advancing on the Capitol but fails to provide any evidence that Trump intended for this to happen or directed them to do so. This allegation is absent in the thousands of cases prosecuted by the Biden Justice Department against rioters and demonstrators.
Smith’s charges against Trump are weak, targeting constitutionally protected speech and a legal theory that cannot be transformed into a crime simply because it’s absurd. Therefore, it can be concluded that the evidence Smith plans to present about the Capitol riot serves two purposes. Firstly, he hopes to incite a Democrat-friendly jury in Washington, DC, to convict Trump despite the weak fraud, obstruction, and civil rights allegations in the case. Secondly, he aims to push the case to trial in time for the crucial 2024 campaign, using the Capitol riot imagery as a campaign ad. The question remains whether the courts will allow the Biden DOJ-appointed prosecutor to succeed in this plan.
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