Your support helps us tell the story
From reproductive rights to climate change to big tech, The Independent is on the ground when the story is developing. Whether it’s investigating the finances of Elon Musk’s pro-Trump PAC or producing our latest documentary, ‘The A Word,’ which shines a light on American women fighting for reproductive rights, we know the importance of analyzing the facts of messaging. .
At such a critical moment in American history, we need reporters on the ground. Your donation allows us to continue sending journalists to tell both sides of the story.
The Independent is trusted by Americans across the political spectrum. And unlike many other quality news outlets, we choose not to block Americans from our reporting and analysis with a paywall. We believe that quality journalism should be available to everyone, and paid for by those who can afford it.
Your support makes a difference.
Whe didn’t Donald Trump ever charged with the crime of sedition?
That’s the question looming over the president-elect’s federal prosecution, and his allies and supporters are using the fact that he shouldn’t have downplayed the charges against him, as well as the Jan. 6 attack itself.
In his final report he Trump‘s attempts to overturn the 2020 presidential election, the former special adviser Jack Smith revealed that his office “considered” but “ultimately decided against” accusing Trump of committing or facilitating rebellion against the government, fearing the allegations would open a minefield of litigation that could derail the entire case.
Smith explains that there simply hasn’t been enough legal groundwork in the last century to properly define “riot” and “incitement” to define what happened on Jan. 6, despite judges across the country routinely labeling it — and blaming directly at Trump.
“The office recognized why the courts had described the attack on the Capitol as an ‘insurrection,’ but it was also aware of the litigation risks that using this long-dormant statute would present,” Smith explained.
Case law reviewed by his office found that sedition “usually involves the overthrow of an existing government, not the maintenance of power, which could present another challenge to proving beyond a reasonable doubt that Mr. Trump’s conduct on Jan. 6 qualified as sedition given that he was the current president at the time,” the report said.
But according to Smith, the evidence fits.
The evidence showed that the violence “was foreseeable” to Trump and “he provoked it, that it was useful to his plan to obstruct certification, and that when it happened, he made a conscious decision not to stop it, but to take advantage of it.” for more delays,” the report said.
Smith even believed his office had enough cases to prove that Trump “incited” the riots with his Jan. 6 speech at the Ellipse in Washington, DC
But Smith found no explicit evidence to show that Trump and his alleged accomplices planned for this to happen, but instead took advantage of what his the false narrative of election fraud inspired.
And prosecutors could not find a single case in which a defendant was charged with rebellion “because he acted within the government to maintain power, rather than overthrowing or thwarting it from without.”
Charging Trump with sedition in that way “would be a first, making the charge even more difficult, given the other available charges, even if there were reasonable arguments that it could apply,” Smith wrote.
The Age of Civil War Insurrection Act states that “whosoever incites, abets, aids, or engages in any sedition or rebellion against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”
Last year, several states came close to impeaching the former president under those terms.
The Supreme Court after all reversed the judgment of the Colorado state court which declared the president ineligible to be president under the 14th Amendment, which bars anyone who has taken an oath to uphold the Constitution and “engaged in rebellion or sedition” from holding public office.
The 14th Amendment was among a series of civil rights amendments enacted in the volatile aftermath of the Civil War. It was intended to provide equal legal protection to all citizens, including formerly enslaved people, with a broadly worded clause intended to prevent confederates from returning to the government they rebelled against.
In 2023, a lawsuit filed by Citizens for Accountability and Ethics in Washington on behalf of a group of five Republican and independent voters in Colorado claimed that Trump failed that test, making him “constitutionally ineligible to appear on any ballot in Colorado as a candidate for federal or state office”.
Smith made that claim in his final report.
Smith resigned from his position in the Ministry of Justice On January 10 after submitting his two-volume report to the Attorney General Merrick Garlandwhose office entered a a protracted legal battle with a Trump-appointed judge over the release reports.
Smith’s resignation was revealed in a 24-word footnote on the third page of an 11-page court filing — marking an anticlimactic end to the most significant criminal prosecution in Ministry of Justice history, while they are Trump’s allies they threaten him with their own prosecution.
The report — released just days before Trump’s return to the White House — follows Smith’s post-election decision to end his two major criminal cases against the former president, effectively throwing in the towel after years of trying to prosecute Trump for 44 crimes, detailed in hundreds of pages of evidence.
None of the cases reached trial.
Federal grand jury indictment in 2023 accused Trump of conspiracy and obstruction over his efforts to reverse his election defeat and failure to prevent crowds of his supporters from storming the US Capitol on January 6, 2021, when lawmakers met to confirm Joe Biden’s victory.
Trump was it is charged separately 2023 with the mishandling of the pile of classified documents inside Mar-a-Lago and then allegedly obstructing attempts by federal authorities to return them.
The case against his co-defendants is ongoing, but Trump is expected to pardon two longtime Trump employees who were indicted along with him.
Smith’s decision to end the cases was inevitable, after months of delays, appeals, Supreme Court rulings and, ultimately, Trump’s election victory, which threw the courts and the Justice Department into unprecedented territory.
On the advice of his own agency counsel, who had long held that the president could not be prosecuted, Smith decided to close the cases entirely.
Without convictions or sentences handed down, the cases had no chance of surviving the Trump administration.
Trump routinely conflates prosecutions and litigation against him as an attack on the American people and the very rule of law, and has long viewed his election as an absolution. He spent his 2024 campaign raging against judges and prosecutors, including Smith, whom he vowed to fire “within two seconds” assuming office if his work continues in his administration. Trump said Smith should be “kicked out of the country” and believes he should be criminally charged for his work.
One criminal trial Trump endured resulted in a unanimous jury verdict on 34 counts. He was convicted on January 10. Unlike his federal cases, Trump cannot issue himself a pardon to throw out his convictions in that case and the sentence without consequences handed down by New York Judge Juan Merchan ensures that Trump will enter office as the first president ever to be convicted of a crime.
Trump, meanwhile, is hoping fill your Ministry of Justice with your criminal lawyers and other lawyers who represented him and his campaign.