Brandi Buchman is a legal/justice reporter at HuffPost, based in Washington, D.C. She covers the U.S. Justice Department, federal courts, and issues where law and politics intersect. She has reported on the Trump administration at length including both impeachments of former President Donald Trump, the Jan.
What happened at the U.S. Capitol on Jan. 6, 2021, according to many of the nation’s courts and judges, was an insurrection by the very definition of the word. So why, at the end of a yearslong probe, did special counsel Jack Smith ultimately forgo charging Donald Trump with inciting one?on Tuesday. The report was an unambiguous presentation of why Trump’s alleged criminal effort to unlawfully retain power left prosecutors no choice but to charge him with four felonies.
For “whatever reason,” Wallace wrote in her ruling, the drafters of the Constitution’s insurrection clause “did not intend to include a person who had only taken the presidential oath,” and it wasn’t for her court to decide what the drafters meant.Trump fought the ruling all the way up to the Colorado Supreme Court, which ruled against him in December 2023.
To succeed in trying Trump for inciting an insurrection, they would have to prove subjective intent showing that Trump meant to cause the full range of violence that day.With other, more “solid” charges available to prosecutors that would allow them to forgo clearing any “rigorous” hurdles for speech, dropping pursuit of the insurrection charge was the most legally sound choice.Wallace and the Colorado Supreme Court have not been the only parties in the legal system to characterize Jan.
But in these and other instances, the courts were never obligated to resolve how to define an insurrection under Section III. Some U.S. courts have already defined “insurrection” as something that occurs when it involves “overthrowing a sitting government, rather than maintaining power.”This dynamic posed “another challenge to proving beyond a reasonable doubt that Mr. Trump’s conduct on Jan. 6 qualified as an insurrection given that he was sitting president at that time,” the report states.
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