The Jack Smith Report
Here’s the report.
Here’s the section on Insurrection — the only crime that would have disqualified Trump as President.
The Office considered, but ultimately opted against, bringing other charges. One potential charge was 18 U.S.C. § 2383, sometimes referred to as the Insurrection Act, which provides that “[w]hoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” 18 U.S.C. § 2383. Section 2383 originated during the Civil War, as part of the Second Confiscation Act of 1862. See Act of July 17, 1862, ch. 195, § 2, Pub. L. No. 37-160, 12 Stat. 589,590.
[snip]
To establish a violation of Section 2383, the Office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an “insurrection against the authority of the United States or the laws thereof,” and then prove that Mr. Trump “incite[d]” or “assist[ed]” the insurrection, or “g[ave] aid or comfort thereto.” 18 U.S.C. § 2383
[snip]
The Office determined that there were reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court’s standard for “incitement” under Brandenburg v. Ohio, 395 U.S. 444,447 (1969) (holding that the First Amendment does not protect advocacy “directed to inciting or producing imminent lawless action and … likely to incite or produce such action”), particularly when the speech is viewed in the context of Mr. Trump’s lengthy and deceitful voter-fraud narrative that came before it. For example, 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 the Office did not develop direct evidence-such as an explicit admission or communication with co-conspirators-of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6. Therefore, in light of the other powerful charges available, and because the Office recognized that the Brandenburg standard is a rigorous one, see, e.g., NA.A.CF v. Claiborne Hardware Co., 458 U.S. 886, 902, 927-929 (1982) (speech delivered in “passionate atmosphere” that referenced “possibility that necks would be broken” and violators of boycott would be “disciplined” did not satisfy Brandenburg standard); Brandenburg, 395 U.S. at 446-447 (reversing conviction where Ku Klux Klan leader threatened “revengeance” for “suppression” of the white race), it concluded that pursuing an incitement to insurrection charge was unnecessary.
By comparison, the statutes that the Office did charge had been interpreted and analyzed in various contexts over many years. The Office had a solid basis for using Sections 3 71, 1512, and 241 to address the conduct presented in this case, and it concluded that introducing relatively untested legal theories surrounding Section 2383 would create unwarranted litigation risk. Importantly, the charges the Office brought fully addressed Mr. Trump’s criminal conduct, and pursuing a charge under Section 23 83 would not have added to or otherwise strengthened the Office’s evidentiary presentation at trial. For all of these reasons, the Office elected not to pursue charges under Section 2383. 193
DOJ also released the Hunter Biden report, which attempts to prove the prosecution was not political but proves the opposite.
I’ll return to both later.
Looking forward. Smith doesn’t mince his words. I only hope that the MSM doesn’t focus on the supposed “failure” of Smith’s office to move faster, most of which was directly attributable to Trump himself, and instead focuses on “Mr. Trump’s criminal conduct.” Most likely, they will “both-sides” things by playing the one report off against the other, as if the conduct of a private citizen in the throes of addiction were comparable to an attempt to overthrow the government.
Short version: Trump is an insurrectionist but not in a way we could conclusively prove in a court of law.
So the report is out, as hoped. But realistically what will change? MAGA couldn’t care less about Trump’s crimes, the election results proved that. Everyone knows he’s a criminal, and utterly unfit for office, and yet here we are.
Let’s allow ourselves a moment of hand-wringing about what might have been, then concentrate on planning what to actually DO for the next four years to minimise the harm this moron can cause.
How do the people “minimize the harm this moron can cause” when SCOTUS has ruled that he can have his enemies killed, no questions asked, when he will tell courts “I don’t care what you say, I’m doing it my way. Try coming after me.”
Biden admin needs to take some action now.
“Trump is an insurrectionist but not in a way we could conclusively prove in a court of law.”
Smith was no doubt correct about that. There is no way on Earth this Supreme Court would have gone along with an insurrection charge or verdict against Trump. It might even have been rejected 9-0.
Re MAGA whinging -there is also the MGAnonners whinging to wonder about too
I think the report does a pretty good job of setting out the complexity of the investigations, and some indication (though perhaps not sufficiently) of the work done prior to Smith’s appointment.
It is also pretty good on laying out Trump and his teams persistent interference and the role of Twitter in aiding and abetting Trump’s interests as a fog horn for intimidation and a shield from investigation.
All of which, those who paid attention already knew
I suspect those who didn’t won’t be moved from their visceral urge to scapegoat Garland.
It seems to me that the decision not to indict on 18 U.S.C. § 2383 was based on reasoning frequently discussed in these threads and the report kind of confirms what we had thought. Though insurrection, or seditious conspiracy ( which wasn’t considered for Trump) have the big feels of really serious charges meeting the moment, there are wrinkles to the elements which would have created more problems than it solved
Where the report was good was tying in Trumps propensity to stir up violence from his supporters as a routine element of his manipulative rhetoric, amped up for the occasion of J6, with the evidence of intimidation of poll workers, the evidence convicting the rioters and seditionists, and his attempts to cow witnesses and interfere with the investigation and administration of justice.
Again, nothing we didn’t know, but many including some SCOTUS Justices want/need to compel themselves to ignore.
That is NOT the case. This is the last sentence in the report:
“Trump is an insurrectionist but not in a way we could conclusively prove in a court of law.”
As harpie has already pointed out, that is wrong.
And, straight from the horse’s mouth (“Special counsel Jack Smith says evidence against Trump was enough to convict him”):
https://www.npr.org/2025/01/14/g-s1-42358/trump-jack-smith-election-report
I am not a lawyer – why does Smith not name the co-conspirators in his report? Is there a (theoretical given Trump will be president) prospect of them being charged? And given that in the real world they will not be charged, why not name them in the report?
They are unindicted Co-conspirators, so as uncharged people naming them would undermine their entitlement to the presumption of innocence, which is not merely a pre indictment right, but is also a civic right not to be unnecessarily stigmatised in public
Some info here:
Thank you. I find it strange that Smith says that he reached a preliminary decision that they could be charged, but then doesn’t elaborate or identify them. If they were definitively not charged, this would have been explained and they would have been named and possibly shamed (as Robert Hur did with Biden). If they were indicted, the evidence against them would have been disclosed. This middle ground gifts them anonymity and looks like a bit of a cop out to me.
1/7/25 SMITH to GARLAND:
This seems like a “poke the bear” moment standing up against SCOTUS? IANAL.
The final 2 paragraphs of the 2nd letter of
Jan 7 2025, responding to Trump’s whining screed about the Report are excellent too. [pdf/174, a couple of line breaks added for readability]
After dealing with the complaints about seeing the report etc etc, Smith deals with the substantive complaints such as they are:
“Other complaints by Mr. Trump are addressed and rebutted by the Report and court decisions.
For instance, Mr. Trump recycles his baseless allegation that the Office’s work constituted a partisan attack, a claim flatly rejected by the only court to have ruled on it. See United States v Trump, No. 23-cr-257, ECF No 198 (D.D.C. Aug. 3, 2024) (denying Mr. Trump’s motion to dismiss indictment based on selective and vindictive prosecution, “finding no evidence of discriminatory purpose,” “no evidence demonstrating a likelihood of vindictiveness,” and “no evidence that would lead the court to infer that [prosecutorial] discretion has been abused”) (internal quotation omitted).
The Report explains in detail the Office’s steadfast adherence to neutral and evenhanded application of the law and to the Department’s Election Year Sensitivities policy.
Mr. Trump also persists in his challenge to the Attorney General’s authority to appoint a Special Counsel, which is the subject of a pending appeal in the Eleventh Circuit. See United States v Nauta et al., No. 24-12311 (11th Cir.). As explained in my Report, the Office is confident that the Department has strong arguments to prevail on that issue.
Finally, Mr. Trump’s letter claims that dismissal of his criminal cases signifies Mr. Trump’s “complete exoneration.” That is false. As the Office explained in its dismissal motions and in the Report, the Department’s view that the Constitution prohibits Mr. Trump’s indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution-all of which the Office stands fully behind.”
Hunter Biden report?
Based on the plans for the tax trial, Wise will probably try to include anything that can be construed as influence peddling or tangentially FARA.
And they really loved quoting Hunter “not knowing which the fuck way was up” from Beautiful Things, so I wouldnt be surprised to see here.
Fingers crossed, but not holding my breath, that there is anything useful to use towards the origins of the investigation or the chain of custody of the laptop. Or anything towards Smirnov and his payments received, or the Brady timeline beyond the Exhibit 6 Pittsburgh vetting excerpts.
Yeah, nothing remotely useful in there. Maybe something about prosecutorial decisions, yada yada. And the Smirnov tax charges PDF is super blurry, barely legible.
Only 27 pages! Lol I about spit my coffee when I saw that