Why Didn't Jack Smith Charge Trump With Insurrection?

Contributing sentiments towards policy:

48% : Smith's remit was to hold Trump accountable to the law, a relatively narrow task.
47% : In doing so, it shows how the United States legal system is and was unprepared for a figure like Trump.
40% : One of the most beguiling untrod paths is the one where Smith charged Trump with insurrection against the United States.
37% : Even if he had not done so, Trump had vowed to fire Smith and close the case immediately upon taking office.
37% : Smith saw reasonable arguments that Trump's actions met even the high legal bar the Supreme Court has set for incitement -- "the evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay" -- but Smith didn't have any direct evidence of Trump saying the full scope of violence was his goal, so he worried that bringing charges against Trump for inciting an insurrection would be risky.
34% : (As The Atlantic's editor in chief, Jeffrey Goldberg, has written, Trump often uses this mafia-boss tactic of encouraging his minions to act without ever explicitly implicating himself.)
32% : Trump secures his get-out-of-jail-free cardA conviction of insurrection would have been far more consequential than convictions on the charges of conspiracy to defraud the United States, obstruction and conspiracy to obstruct, and conspiracy against rights, which Smith did bring.
31% : Special Counsel Jack Smith's report into his investigation of Donald Trump's 2020 election subversion is an atlas of roads not taken -- one to a land where Trump never tried to overturn the election, another where the Justice Department moved more quickly to charge him, and another where the Supreme Court didn't delay the case into obsolescence.
30% : Trump cleverly instigated his followers to attack the Capitol, and suggested that he was coming with them, but he instead returned to the White House and watched the chaos unfold on TV, rather than take part.
29% : The Senate voted 57-43 to convict, short of the two-thirds majority required to convict Trump and then bar him from future office.
29% : Two years later, some legal scholars tried to make the case that Trump had committed an insurrection and broken his oath of office under the Fourteenth Amendment.
27% : As a result, these senators didn't need to risk the ire of his supporters by voting to convict Trump.
25% : News reports, the House January 6 committee, and Smith's initial and superseding indictments had already laid out how Trump tried to steal an election that he knew he had lost -- first by filing bogus lawsuits and pressuring state officials; then by attempting to corrupt the Justice Department; next by trying to convince Vice President Mike Pence to reject electoral votes; and finally by instigating his followers to attack the Capitol.
24% : Instead, Smith moved to dismiss the charges in November after Trump won reelection, citing Justice Department rules that bar the prosecution of a sitting president.
24% : Felons are entitled to hold federal office -- as Trump will prove on January 20 -- but the law stipulates that anyone convicted of insurrection or rebellion "shall be incapable of holding any office under the United States.
22% : A conviction for insurrection would have prevented Trump from returning to office, but when Smith indicted Trump in August 2023, he didn't charge him with insurrection.
22% : It shows that Smith did seriously consider whether the law applied but concluded he would struggle to convict Trump under it -- not because what happened was not an insurrection, but because the laws were written too narrowly, such that although Trump appears to have violated the spirit of the law, he may not have broken its letter.
22% : David A. Graham: Trump gets away with itBesides, Smith couldn't find any examples of prosecutions where a defendant was charged who didn't actively participate in the act.
22% : And although the Justice Department ought to have moved faster -- Smith was appointed to take on the case only in November 2022 and then acted with speed -- the more consequential error was the Senate's failure to convict Trump at his impeachment trial in February 2021.
19% : Read: The cases against Trump -- a guideMost of the report, which runs to about 150 pages, focuses on the crimes that Smith did charge, the evidence behind them, and why he believes he would have convicted Trump if he'd had a chance to try them.
19% : Smith's decision is understandable but shows why criminal law was always an unreliable method for holding Trump to account.
14% : The nation watched Trump try to overturn the election, first through spurious lawsuits and then by instigating a violent riot on January 6, 2021, in a vain attempt to prevent the certification of President Joe Biden's victory.
12% : "But some Republican senators, led by Minority Leader Mitch McConnell, believed that voters were so irate about the January 6 attacks that Trump was a spent force.

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