What happened at the U.S. Capitol on Jan. 6, 2021, according to many of the nation’s courts and judges, was an insurrection by the very definition of the word. So why, at the end of a yearslong probe, did special counsel Jack Smith ultimately forgo charging Donald Trump with inciting one?
The answer was spelled out in Smith’s charging report to Attorney General Merrick Garland that went public on Tuesday. The report was an unambiguous presentation of why Trump’s alleged criminal effort to unlawfully retain power left prosecutors no choice but to charge him with four felonies. A federal judge (and Smith) only agreed to dismiss the case because Trump won the election in November and prosecutions against sitting presidents are against long-standing Justice Department policy.
Smith’s report could be the final word any prosecutor ever has on Trump and Jan. 6. However, if prosecutors or congressional lawmakers can convince courts (and each other) in the coming years that an existing five-year statute of limitations for federal cases isn’t on pause while Trump is president, then Smith’s report may not be the end of one story, but the beginning of another.
First, to understand where Smith ended up, a bit of history is necessary.
The Mile-High Road To Nowhere
In November 2023, Colorado District Court Judge Sarah Wallace ruled that Trump engaged in an insurrection against the Constitution in violation of Section III of the 14th Amendment.
The judge’s ruling stemmed from a lawsuit brought by six Republicans in Colorado and one unaffiliated voter who wished to remove Trump from the ballot ahead of the 2024 election. They argued that Trump’s remarks from the Washington Ellipse on Jan. 6, his alleged intimidation of voters and election and state officials, his failure to immediately call down the mob, and his alleged pressure campaign on then-Vice President Mike Pence to overturn the results of the 2020 election amounted to insurrectionary acts, and therefore his ouster from the ballot in Colorado was warranted.
The voters argued that while Trump may not have engaged in violence personally on Jan. 6, that element did not need to be proven in order for him to be disqualified from the ballot.
They claimed it was simpler than that, because Trump violated his oath to uphold and defend the Constitution and spent “three hours watching [the events] unfold on television without doing a single thing even though he was the most powerful person in the world,” a lawyer for the voters argued in court.
In her 2023 ruling, Wallace said she was convinced Trump had “engaged” in insurrection, based on the harrowing evidence and testimony she’d considered. But she could not disqualify him.
Disqualification hung on a persnickety distinction: Section III, or the insurrection clause, did not actually consider whether the president of the United States was considered an “officer” of the United States, Wallace found.
Section III of the 14th Amendment states: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”
For “whatever reason,” Wallace wrote in her ruling, the drafters of the Constitution’s insurrection clause “did not intend to include a person who had only taken the presidential oath,” and it wasn’t for her court to decide what the drafters meant.
Trump fought the ruling all the way up to the Colorado Supreme Court, which ruled against him in December 2023. In a 4-3 decision, the state justices concluded that Trump was an officer of the United States, that he engaged in insurrection and that he must be removed from the ballot on those grounds. Trump appealed to the U.S. Supreme Court, and in March 2024 — one day before Super Tuesday primaries — the nation’s most powerful court ruled for the first time in its history on how to apply the insurrection clause.
They reversed the Colorado Supreme Court’s ruling and declared that Colorado’s secretary of state had no authority to remove Trump from the ballot. While states could disqualify a person from running for office or holding it, the insurrection clause was something Congress alone had the power to enforce or modify, the court ruled.
Trump’s lawyers recoiled at the notion that he could be charged with providing rioters “aid or comfort” because, his attorney Scott Gessler argued, not a single Jan. 6 rioter was charged under the Insurrection Act. The fact that more than a dozen people were charged (and later convicted) of seditious conspiracy, or plotting to stop the nation’s transfer of power, was not acknowledged by Trump’s defense.
As Smith alluded to in his final report, Trump’s regular defense of his conduct around Jan. 6 hinged on claims that his words at the Ellipse — where he called on his supporters to “fight” — were broadly protected under the First Amendment.
But there is a difference between speech and incitement, and Smith wrote Tuesday that while the special counsel’s office had “reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on Jan. 6 and could satisfy the Supreme Court’s standard for ‘incitement’… particularly when the speech is viewed in context of Mr. Trump’s lengthy and deceitful voter fraud narrative that came before it,” there was never any “direct evidence” that prosecutors were able to develop proving an explicit admission or communication with co-conspirators.
To succeed in trying Trump for inciting an insurrection, they would have to prove subjective intent showing that Trump meant to cause the full range of violence that day.
With other, more “solid” charges available to prosecutors that would allow them to forgo clearing any “rigorous” hurdles for speech, dropping pursuit of the insurrection charge was the most legally sound choice.
Unprecedented, Unparalleled, Uncertain
Wallace and the Colorado Supreme Court have not been the only parties in the legal system to characterize Jan. 6 as an insurrection.
As Smith pointed out Tuesday, judges in several Jan. 6-related cases have described the attack on the Capitol as an insurrection. This happened even when the charges were misdemeanors and the individual’s conduct was in no way connected, or described as being connected, to part of a “rebellion.”
For example, when a Chicago police officer and his sister, Karol and Agnieszka Chwiesiuk, were headed to trial for Jan. 6 misdemeanor offenses, they asked a federal judge to quash any reference to an “insurrection” or being among “insurrectionists” during proceedings. The judge refused.
These were “accurate descriptors,” because “what occurred on Jan. 6, 2021, was in fact an insurrection and involved insurrectionists,” the judge wrote.
This also happened in the case of Jan. 6 rioter Sara Carpenter, a former New York police officer who, prosecutors said, ignored orders to leave the Capitol and at one point used a tambourine to slap away a police officer’s arm. She spent 30 minutes inside the Capitol building that day. When she emerged, tambourine in the air, she exclaimed: “The breach was made and it needs to calm down now. Congress needs to come out, they need to certify Trump as president, and this is our house.”
Smith noted that in Carpenter’s case, the judge made it plain when writing that “what occurred on Jan. 6 was in fact a riot and an insurrection and it did in fact involve a mob.”
But in these and other instances, the courts were never obligated to resolve how to define an insurrection under Section III.
Before even touching the question of whether Trump incited an insurrection, prosecutors at minimum needed guidance on exactly what proof is required to establish that an insurrection took place, and how to distinguish an insurrection from a riot.
The special counsel’s office didn’t have that.
Dictionary definitions of “insurrection” sometimes make a distinction between an insurrection and a “rout, riot, or offense connected with mob violence” when it features both an organized and armed uprising against the government, Smith wrote.
But doubt began to creep in when prosecutors considered the very limited amount of case law regarding insurrection in the U.S.
Some U.S. courts have already defined “insurrection” as something that occurs when it involves “overthrowing a sitting government, rather than maintaining power.”
This dynamic posed “another challenge to proving beyond a reasonable doubt that Mr. Trump’s conduct on Jan. 6 qualified as an insurrection given that he was sitting president at that time,” the report states.
There was not a single case, Smith said, in which a criminal defendant in America had been charged with attempting to overthrow the U.S. government from the inside.
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Prior to Jan. 6, such attacks had only ever come from the outside.
According to Smith, applying incitement for insurrection in the context of Trump’s case “would have been a first, which further weighed against charging it, given the other charges available, even if there were reasonable arguments that it might apply.”