There Is No Insurrection Case against Trump
Andrew C. McCarthy for National review.com
You know insurrection is a crime, right?
Just to recap, under Section 2383 of the federal criminal code, a person is guilty of a felony, punishable by up to ten years’ imprisonment, if he
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.
US Code
And why do we need a refresher on this? Because the Department of Justice has been investigating Donald Trump and the January 6, 2021, Capitol riot for nearly three years, yet no insurrection charges have ever been brought against Trump or anyone else.
That should be in the front of our minds as anti-Trump obsessives, of the left and the right, proceed with their incendiary plot to disqualify Trump from seeking the presidency by inducing sympathetic state officials to brand him an insurrectionist under Section 3 of the 14th Amendment.
The Justice Department — the arm of the United States government vested with responsibility to enforce the insurrection law — has not charged Trump with insurrection because it can’t prove Trump committed insurrection. Not with anything we would recognize as due process of law.
It’s not that Biden-DOJ-appointed special counsel Jack Smith hasn’t been trying. And it is obviously not that Smith is unwilling to stretch federal criminal laws to the breaking point to make a January 6 case against Trump. The insuperable hurdle is that the evidence does not support a charge of insurrection.
The Biden Justice Department, the most unabashedly political Justice Department in American history, has prosecuted about 1,100 people in connection with the riot, while blinking at the more lengthy and lethal rioting of the radical left. It has been moving heaven and earth to make criminal cases against the former Republican president, indicting him twice, even as it turns a blind eye to the Biden family influence-peddling scandal and willfully allows the statute-of-limitations on the crimes of the sitting Democratic president and his family to expire rather than filing indictments.
After years of investigating, Smith and the Biden Justice Department brought a January 6 indictment against Trump in the District of Columbia, which has the most Trump-hostile jury pool in the country. They then hit the jackpot by drawing an anti-Trump judge out of central casting — Obama appointee Tanya Chutkan, who, in a courthouse where the bench teems with Democratic appointees who’ve meted out harsh sentences to January 6 defendants, manages to stand out as the scourge of the Capitol riot. It is safe to say that Judge Chutkan has swallowed whole the Democratic Party hyperbole that our democracy stood on the precipice of doom due to a mere three hours of unrest — in which no security personnel were killed, which had not the remotest chance of reversing Biden’s victory, and which was so ineffectual that Congress was able to reconvene in the Capitol just a few hours later.
Nevertheless, gifted with this greatest home-field advantage of all time, Smith and his team haven’t charged Trump with insurrection. That’s because they don’t have a case. They desperately want to bring one, but they know that nothing would explode the Democrats’ January 6 myth-making like an acquittal of Donald Trump. And even with Judge Chutkan presiding and a Washington, D.C., jury, that’s what they’d get.
Trump has never been charged with a crime of violence arising out of the riot. Even Smith’s stretch-and-strain indictment did not cross that line. In the Justice Department’s 1,100-odd January 6 cases, not only was Trump never charged; he was not even named as an unindicted coconspirator as defendants were convicted of assaulting police officers and forcibly obstructing a congressional proceeding.
It is not enough to say that Trump was not charged or named as an unindicted coconspirator in the Justice Department’s seditious-conspiracy cases. Those cases themselves do not charge sedition — the wellspring of insurrection.
In the relevant statute (Section 2384), the word seditious appears only in the title, not in the charging language. That language prescribes five distinct conspiracy objectives, the commission of any one of which is a crime punishable by up to 20 years’ imprisonment.
The two most serious of these are akin to sedition as connoted by the Democratic narrative of the Capitol riot: (1) conspiracy “to overthrow, put down, or destroy by force the Government of the United States,” and (2) conspiracy “to levy war against” the United States. But while the Biden Justice Department’s cheerleaders like to tout the “sedition” convictions, the Justice Department did not charge anyone with conspiring to overthrow the government or wage war against our nation. That’s not what even the worst of the rioters were up to. The rioters bought Trump’s reckless nonsense about a stolen election and believed they were saving the government and the country. What they did was reprehensible, but it was not an effort to overthrow the government — it was to preserve the government with Trump, whom they irrationally believed had been duly elected, as president.
Thus, the Justice Department had to resort to two of the three less serious, albeit condemnable, conspiracies codified by Section 2384: conspiracy (3) “to oppose by force the authority” of the United States government, and (4) conspiracy “to prevent, hinder, or delay the execution of any law of the United States.” (The fifth conspiracy criminalized by Section 2384 is conspiracy to forcibly seize government property.)
These are serious offenses, but they are not sedition, let alone insurrection. It is noteworthy, moreover, that the Justice Department’s rationale for invoking these Section 2384 provisions in January 6 cases could also have rationalized seditious-conspiracy charges against radical leftists who were stirred by the likes of Senator Elizabeth Warren to occupy the Capitol during the 2018 Kavanaugh-confirmation hearings, as well as, say, the radical leftists who firebombed the federal courthouse in Portland, Ore., in 2021.
Naturally, such cases were never brought.
The Justice Department has not resorted to the most egregious seditious-conspiracy charges in connection with the Capitol riot for the same reason it hasn’t brought an insurrection charge: In a courtroom, prosecutors need evidence — the loose rhetoric of Democrats and other anti-Trump obsessives won’t do. And no violent-crime charges have been brought against Trump at all because, again, in a courtroom, moral and political culpability for the events of January 6 — which Trump undoubtedly bears — is insufficient. You’ve got to be able to prove the crime — not just the acts of force but the required mental state. On Trump, Smith has neither. And he’s not close, because — past being prologue — if he were close, he’d go for it.
I don’t want Donald Trump to run for president, much less be president. But on the facts of the case, the only way to disqualify him is to impeach and convict him. Impeachment has its own disqualification provision which the Senate failed to satisfy in Trump’s second impeachment trial. The 14th Amendment is not a legitimate substitute for it, any more than the 25th Amendment was when its potential invocation was (properly) rejected in the frenzied days after the Capitol riot.
Inadvertently or not, those who are advocating the 14th Amendment as a vehicle for banning a Trump presidential run are doing the same thing they condemn Trump for doing: positing a highly dubious, widely rejected legal theory to interfere with the Constitution’s democratic process for electing a president. Why do I think that when they inevitably get the same result, they will shrug their shoulders Trump-like and tell us they bear no blame for the tumult?
That said, since we are apparently content for the criminal-justice process to be our proxy for Congress’s failed impeachment process, should it not also settle any legitimate question of the 14th Amendment? That is, shouldn’t there be no move to disqualify Donald Trump under Section 3 unless special counsel Smith indicts and convicts him of insurrection — with Trump given all the due-process protections of a criminal trial?
If Smith, with all of his advantages, cannot make the case, why are we even discussing this?