What Did the Trump J6 Indictment Leave Out?

What Did the Trump J6 Indictment Leave Out?

From Reason Magazine’s notes on the August 1 indictment of Donald Trump on January 6 related issues:

…Here, I would like to highlight what Special Counsel Jack Smith left out:

The most significant omission was that Trump was not indicted for insurrection, 18 U.S.C. § 2383. This decision was not particularly surprising, since none of the January 6 defendants have been charged with insurrection. Stuart Rhodes and the Proud Boys were convicted of seditious conspiracy. Federal prosecutions for insurrection are extremely rare, and there were many open questions about how to obtain a conviction.

The decision not to seek an indictment for insurrection has several immediate consequences. First, the punishment for violating Section 2383 includes being “incapable of holding any office under the United States.” Seth Barrett Tillman and I wrote in early 2020 that even if Trump were convicted of violating this statute, he could not be disqualified from serving a second term as President. Now that Smith has not indicted Trump for violating this statute, we will not need to decide the scope of Section 2383.

Second, if Smith had indicted Trump for violating Section 2383, he would have had to lay out in a systematic fashion why Trump’s conduct amounted to insurrection. Regardless of whether Trump was convicted of violating that statute, state election boards could have relied on that indictment as the predicate to disqualify Trump. In other words, there would have been a common nucleus of operating facts for a Section 3 claim against Trump. Smith’s indictment could have been copied-and-pasted nationwide. But we do not have those facts. Indeed, based on my quick read, the word “insurrection” appears nowhere in the statute…. More


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