For much of the time that a special federal prosecutor was pursuing Donald Trump, scholars and other legal observers wondered why Trump was never accused of “engaging in insurrection.” The question hangs over the history of what happened at the U.S. Capitol on January 6, 2021.
The public release early Tuesday morning of Special Counsel Jack Smith’s final report on that violent uprising provides an answer: Smith disclosed that he and his team were not convinced that they could prove to a jury that Trump had violated the federal law, dating from the Civil War era, making insurrection a crime.
Had Smith leveled that charge, the accusation alone – even if not proved at a trial – might have bolstered the constitutional argument that Trump was constitutionally disqualified from seeking the Presidency – or any public office – again.
U.S. history of this era might have been profoundly different; the might-have-beens are legion. At a minimum, there would have been even greater doubt than there was during election year 2024 about Trump’s eligibility to be a candidate.
The 1862 insurrection law is a precursor to a part of the Fourteenth Amendment, ratified as part of the Constitution in 1868. Their texts are quite similar.
Congress, in passing what is called the Second Confiscation Act of 1862, included Section 2383, known informally as the Insurrection Act. That section says: “Whoever 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.” (emphasis added)
Section 3 of the Fourteenth Amendment uses this language (edited to the words that might have applied to Trump) “No person shall…hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath…as an officer of the United States,…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.”
Trump, of course, had taken the constitutional oath when he became President in 2017, so that would have made both the law and the constitutional provision apply to him, if he were to be charged and convicted of insurrection or of aiding insurrection. Note that the language of both has two parts: applying to those oath-takers who themselves engage in insurrection, and, separately, to those who give “aid and comfort” to insurrectionists.
Last year, one court in the nation (the Colorado Supreme Court) ruled that, under the Fourteenth Amendment, Trump had engaged in insurrection in the 2021 attack on the Capitol and thus could not run for the Presidency in that state. Although the U.S. Supreme Court last March ruled that only Congress had power to enforce the constitutional disqualification, putting Trump back on the ballot, the Court said nothing at all about the state court’s explicit finding that Trump had engaged in insurrection.
Thus, that was – and still is today – an open question constitutionally. But what about the 1862 law on insurrection, and its ban on public office for oath-taking violators?
Jack Smit and the Insurrection Act
Throughout Special Counsel Smith’s two-years-and-two-months as a prosecutor, that old law remained available to his team as a potential basis for a charge against Trump. Of course, had Smith aimed that charge at Trump, the former President’s lawyers surely would have challenged it by arguing that, as the former President, he was immune to criminal prosecution.
Although Trump, along with all other past and future Presidents, did win sweeping constitutional immunity to criminal prosecution in a historic ruling by the Supreme Court last July 1, that ruling did not mention the Insurrection Act, and certainly did not make any ruling on what law or laws Trump might have violated – whether the ones Smith did make, or any others. What laws Trump broke (other than those for which he was convicted in a New York state case) remains an open question at the close of Smith’s investigation.
In Smith’s final report on the January 6 probe, six revealing pages offer his answer to the abiding question – which Smith and his team apparently thought a lot about – of whether to accuse Trump of having engaged in insurrection.
Those pages, in summary, offer these reasons for forgoing that charge:
Under the law’s first section, on engaging in insurrection: The most important reason appeared to be that the evidence Smith’s team had gathered “did not include evidence that Mr. Trump directly engaged in insurrection himself.” Other reasons were: (a) rulings in the past by courts on that provision are “scarce” and provide “little guidance” on applying them to the January 6 situation; (b) no one has been charged with violating that provision “in more than 100 years” and relying on such a “long-dormant statute” posed risks before a jury; (c) several recent court rulings have called what happened at the Capitol in 2021 an insurrection, but in none of those cases were those decisions enforcing the 1862 law (including the Colorado Supreme Court decision treating Trump as having engaged in insurrection under the Constitution); (d) it would have been difficult to put before the jury evidence that distinguished between insurrection and a riot; (e) insurrection usually is understood to be an attempt by outsiders to overturn a government, and Trump was the head of the government at the time of the attack, not an outsider; and (f) using the 1862 law in the January 6 situation “would have been a first” and that posed more risks than the other charges that were available and were actually charged.
Under the law’s second section, on aiding or comforting those who engage in insurrection: Although Smith wrote that he had “strong” proof that Trump “incited or gave aid or comfort to those who attacked the Capitol,” applying that provision to him “would have been a first.” Other reasons were: (a) while Trump’s speech the morning before the attack could have incited his followers to attack the Capitol, Smith’s team had no evidence of Trump having directly communicated with the mob leaders or that he intended “to cause the full scope of the violence that occurred;” (b) the standard for proving incitement is “rigorous” because it may implicate free speech protected by the First Amendment; (c) there has never been a prosecution under that provision, so there is no guidance on how to apply it to in a real case; and (d) the availability of other criminal charges made it unnecessary to take trial risks on these points.
Of course, any prosecutor has quite wide discretion about what criminal charges to file, and most prosecutors will draft charges that they feel confident that they can prove “beyond a reasonable doubt” to a jury. Smith’s final January 6 report declares that his team “had a solid basis” for making the four specific charges that were aimed at Trump, and so the team opted to avoid “relatively untested legal theories surrounding” the 1862 law.
Perhaps the least persuasive argument that the report cites for the decision not to charge Trump under that old law was that, at the time of the Capitol attack on January 6, Trump was still the head of the government so he would not have engaged in insurrection — if that is understood legally as an effort by outsiders to overthrow the existing government.
Trump did continue in office for another two weeks, before Joe Biden took the oath as President on January 20, 2021. But at the heart of what Jack Smith claimed was Trump’s clear intent on January 6 was to find a way to remain in office past January 20 by undoing the actual results of the 2020 election, and that could not be accomplished as an act of the government; the Constitution does not sanction insurrection, and Article II explicitly limits a President to a term of four years, absent valid reelection.
Trump’s claim of authority to continue as President in 2020 was exceedingly weak, as of January 6, 2021. The election the preceding November had appeared to show conclusively that he had lost; the Electoral College formally confirmed his loss on December 14 that year; all of the states’ official electoral votes had been sent to Washington by the December 23 deadline. All that remained to confirm Biden’s election was the counting of votes by the joint session of Congress on January 6.
And that was the constitutional proceeding that the attack disrupted. In no way was that disruption a part of then-President Trump’s official duties – however the Supreme Court might define them as a constitutional matter.
With the closing of the Smith investigation, and with Trump now officially and constitutionally confirmed as the next President, only history – and not the courts – will judge whether Trump was an insurrectionist.
