Of all the outrages in Biden special counsel Jack Smith’s latest indictment of Donald Trump – and there are many – the worst comes at the end of the 45-page screed’s Count One, the section entitled “The Defendant’s Exploitation of the Violence and Chaos at the Capitol.”
This is where Smith waves the bloody shirt.
Smith intends to try Trump for the Capitol riot even though he hasn’t charged Trump for the Capitol riot.
No rioting charge. No allegation of criminal incitement. No seditious conspiracy, no insurrection, no crime of violence of any kind.
To levy such an allegation would have been untenable.
Smith’s indictment hides the ball, as did the like-minded, unabashedly partisan, monochromatically anti-Trump House January 6 committee.
In his Ellipse speech, Trump explicitly called for the march on the Capitol to be “peaceful.”
Like the Democrat-controlled House committee, the prosecutor omits that inconvenient fact.
In American constitutional law, violence is our bright line.
The First Amendment protects expression, and especially political speech, that is aggressive, obnoxious, and even false.
The remedy for such speech is more speech – corrective speech – not criminal prosecution.
Unless, of course, the speaker willfully conveys an intention to cause violence that is real and imminent.
At that point, federal penal law forbids solicitation of violent crimes and all manner of conspiracies to use force.
Trump cannot be charged with soliciting violence on the facts of January 6.
That is why, despite charging over a thousand people in connection with the Capitol riot, the Justice Department not only refrained from indicting Trump; prosecutors never named him as an unindicted coconspirator.
Indeed, they fought tooth and nail against efforts by January 6 defendants to shift blame to Trump for their wrongdoing.
Yet Smith seeks to inject the Capitol riot into a case in which he has not charged the Capitol riot.
What’s more, although Trump cannot be held criminally liable for the violence of the uprising, the Capitol riot is the prism through which Smith, the Biden Justice Department-appointed prosecutor, would have the public view the case he has charged against Biden’s 2024 campaign rival.
In one of the most demagogic performances ever by a federal prosecutor in a high profile case, Smith’s post-indictment press-conference remarks on Tuesday evening barely mentioned the charges he had actually filed.
Instead, Smith proclaimed, “The attack on our nation’s Capitol on January 6, 2021, was an unprecedented assault on the seat of government.”
He went out of his way to laud “the men and women of law enforcement” spotlighting the heroism with which they fought off the rioters.
But again, Smith doesn’t charge Trump with a crime stemming from the violent attack. Instead, he includes the aforementioned “exploitation” aside at the tail end of the indictment.
It details how a “mass of people … broke through barriers cordoning off the Capitol grounds and advanced on the building, including by violently attacking law enforcement officers trying to secure it.”
Unmentioned is just that one itsy-bitsy detail: Smith has no evidence that Trump intended for them to do that, much less that he directed them to do so. How could he?
To repeat, in a thousand cases against rioters and demonstrators, Biden Justice Department prosecutors have made no such allegation.
The new indictment is a political document.
Smith’s charges are weak – what he describes as “fraud,” “obstruction,” and “civil rights” violations actually target (a) constitutionally protected speech and (b) a legal theory (that the Vice President is empowered to discount electoral votes) which Smith cannot transmogrify into a crime by dint of its being cockamamie.
We have to conclude, then, that evidence about the Capitol riot that Smith plans to offer has two purposes.
First, he hopes to incite a Democrat-friendly Washington, D.C., jury into convicting Trump despite the infirmity of the fraud, obstruction, and civil rights allegations in the case – i.e., to convict him for the Capitol riot despite failing to charge him for the Capitol riot.
Second, and most significantly, Smith hopes to push the case to trial in time for the crucial stretch-run of the 2024 campaign – to infuse the electorate with Capitol riot imagery as they cast their votes, turning a criminal trial into one long Biden campaign ad.
That’s the plan. The question is: Will the courts let the Biden DOJ-appointed prosecutor get away with it?