Special counsel Jack Smith’s final report asserted federal prosecutors lacked grounds to charge President-elect Donald Trump with incitement for the Jan. 6, 2021, Capitol Hill protests, while it also said there was not a significant enough amount of fraud that it altered the outcome of the 2020 presidential election.
The Smith report’s concession on incitement is significant, since the Democrat-led House impeached Trump for “incitement of insurrection” regarding the Jan. 6 protest when a pro-Trump mob illegally entered the Capitol building. In 2022, the House Select Committee to Investigate the January 6 Attack on the Capitol issued a report accusing Trump of incitement several times.
“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,” said the Smith report.
“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,” the report adds. “Therefore, in light of the other powerful charges available, and because the office recognized that the Brandenburg standard is a rigorous one … it concluded that pursuing an incitement to insurrection charge was unnecessary.”
The “Brandenburg standard” stems from a Supreme Court precedent that speech advocating or inspiring illegal activity is protected speech unless it is directed to imminently target such activity.
The 174-page Volume 1 of the Smith report, released after midnight Tuesday morning, offers little new information and focuses on Trump’s challenge to the 2020 election loss to President Joe Biden.
Every Democrat and 10 House Republicans voted for Trump’s 2021 impeachment on House charges of incitement days before he left office. In the Senate trial held after Trump was out of office, seven Senate Republicans joined all Democrats in a vote to convict and bar Trump from running for office again. The vote fell short of the two-thirds needed for a conviction.
After a federal court order in Florida, the Justice Department agreed not to release the second volume of the Smith report that focuses on Trump’s classified documents case because charges against two co-defendants are still pending.
Trump was indicted on four counts of conspiracy in the election case, none that pertained directly to the Jan. 6 mob illegally entering the Capitol.
After Trump’s November reelection, the Justice Department announced it was dropping both cases. Smith resigned from his post this weekend.
“The department’s view that the Constitution prohibits the continued indictment and prosecution of a president 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, which the office stands fully behind,” is why both cases were dropped, the Smith report says.
The report insists that there was enough evidence to convict Trump had there been a trial: “Indeed, but for Mr. Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
In a Truth Social post, Trump blasted Smith as a “lamebrain prosecutor.” The former and incoming president also took shots at the House Select Committee that investigated Jan. 6.
“Deranged Jack Smith was unable to successfully prosecute the Political Opponent of his ‘boss,’ Crooked Joe Biden, so he ends up writing yet another ‘Report’ based on information that the Unselect Committee of Political Hacks and Thugs ILLEGALLY DESTROYED AND DELETED, because it showed how totally innocent I was, and how completely guilty Nancy Pelosi, and others, were,” Trump posted. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!”
In the report, Smith contends Trump made “knowingly false claims of election fraud” and didn’t really believe Biden won with fraud.
“These claims were demonstrably false and, in many cases, obviously false. The office investigated whether Mr. Trump believed the claims he made,” the Smith report says. “Evidence from a variety of sources established that Mr. Trump knew that there was no outcome-determinative fraud in the 2020 election, that many of the specific claims he made were untrue, and that he had lost the election. He knew this because some of the highest-ranking officials in his own administration, including the vice president, told him directly that there was no evidence to support his claims.”