The indictment handed up by President Biden’s officers last night against his principal rival in the 2024 election is yet another exhibit in the argument that voters are better placed than jurors to render a verdict on President Trump’s actions on January 6. We don’t want to belittle how shocking Mr. Trump’s behavior was that day. To us, though, it looks as if Special Counsel Jack Smith felt his assignment was to come up with something.

Mr. Smith gamely emphasizes that the charges are but accusations and that Mr. Trump must be deemed innocent until proven guilty. It’s also nice to see him acknowledge that Mr. Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely” that he had won it. If that’s okay, as we agree it is, why — other than the 2024 election — is the government in such an all-fired lather to prosecute all this as criminal?

One of the things that gives this all away is Mr. Smith’s choice to prosecute Mr. Trump under the post-Enron act known as Sarbanes-Oxley. We’ve been marking that point since issuing the editorial “The Sarbanes-Oxley Riot.” This law regulating business is being used against Mr. Trump for conspiring to “obstruct an official proceeding.” That law, aimed at business, bars “tampering with a record or otherwise impeding an official proceeding.”

Count on Mr. Trump to object to the application of this law to the riot at the Capitol. The measure was never meant for rioters against the electoral count. No wonder that its use to prosecute January 6 defendants has already caused differences of opinion on the federal bench, and is currently a live question being weighed by the Supreme Court. If the Nine grant review and agree with the January 6 defendants, it could defang Mr. Smith’s indictment.

Mr. Smith accuses Mr. Trump of conspiring against “a right and privilege secured to” Americans by the Constitution. That is the “right to vote, and to have that vote counted.” The charge stems from a Reconstruction-era law enacted “to provide a tool for federal agents” to prosecute wrongdoers, like “Ku Klux Klan members,” the Times has reported, “who engaged in terrorism to prevent formerly enslaved African Americans from voting.” 

Yet we can see Mr. Trump flipping the script on this accusation, especially considering how much of his rhetoric leading up to January 6 centered on making sure all votes had been properly counted. “In Pennsylvania,” Mr. Trump said on January 6, “you had 205,000 more votes than you had voters.” Mr. Smith writes of the constitutional “right to vote, and to have that vote counted.” Mr. Trump could argue that he was seeking the exact same thing. 

Conspicuous by their absence in the indictment are any accusations of insurrection or seditious conspiracy, dubbed by legal sage Laurence Tribe as “treason’s sibling.” Seditious conspiracy convictions have already been secured against other January 6 defendants, raising the question of why Mr. Smith demurred. One of those convicted, the Oath Keeper Elmer Stewart Rhodes III, predicted such a charge would come. It could yet.

Mr. Smith’s failure, at least so far, to pursue a charge of insurrection might be because Mr. Trump was already, in his second impeachment, charged with “incitement to insurrection” — only to be discovered by the Senate to be not guilty and to be acquitted. Not one January 6 defendant has been charged with insurrection, and no federal court has ruled that an insurrection occurred. Mr. Smith may just have opted to play it safe.      

Mr. Smith’s indictment appears poised to accelerate a trend noted by a number of anti-Trump GOP Senators who fear that Mr. Biden’s strategy of going after Trump in the courts is actually helping his standing in the polls. “Maybe that’s their strategy,” Senator Paul has wondered. “Maybe their strategy is: ‘Let’s keep indicting him. We’ll build him up because he’s the one candidate who won’t have appeal to independents.’”

Which brings us back to the concept of the special prosecutor. The latest indictment reads, at least to us, like charges that wouldn’t have been handed up by a regular, garden variety prosecutor. Rather, they smack of something finally dug up by a prosecutor who had no other priorities, like violent crime or organized shoplifting. The Times reports that Mr. Smith has finally gotten to the “heart of the matter.” To us the heart of the matter is that on January 6 the Constitution worked just as intended.