One of the things historians of the future will focus on in Special Counsel Jack Smith’s final report is the issue of insurrection. Why was it never charged against President-elect Trump or anyone else? America’s failure, as the 47th president prepares to swear to the parchment and Mr. Smith departs, to find an insurrection stands as a signal moment in the election interference case, which foundered when voters delivered their verdict in November.Mr. Smith acknowledges that he considered but eschewed charging Trump under the Insurrection Act. The law provides that anyone who “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.”The special counsel admits that cases relating to insurrection “are scarce and arose in contexts that provided little guidance regarding its potential application in this case.” He adds that “It does not appear that any defendant has been charged with violating the statute in more than 100 years.” President Biden has used the word “insurrection” to refer to the Capitol riot. No federal court has found, in a criminal proceeding, the riot amounted to insurrection.Mr. Smith could not find “any case in which a criminal defendant was charged with insurrection for acting within the government to maintain power, as opposed to overthrowing it or thwarting it from the outside.” Charging Trump for insurrection, he reasons, “would have been a first.” Novelty is hardly a virtue when it comes to criminal law. Its absence in a report shimmering with defiance is all the more newsworthy. The decision by the hard-charging prosecutor to forgo an insurrection charge throws into sharp relief the effort by those on the legal left to block Trump from running for president, as an insurrectionist, on the basis of Section Three of the 14th Amendment. The Colorado Supreme Court agreed, but the Supreme Court, in a unanimous decision, ruled that the Centennial State was crosswise with the Constitution.There is another part of the insurrection story that Mr. Smith neglects to tell — Trump was impeached and acquitted of “incitement to insurrection.” That is, he was discovered by the Senate to be “not guilty.” Had he been convicted, he could have been barred from holding office again — the same punishment that the Insurrection Act carries. Mr. Smith reasons that “pursuing an incitement to insurrection charge was unnecessary.”The invisibility of insurrection is no whitewash of what transpired at the Capitol. The worst of the rioters were charged and convicted of seditious conspiracy, an adjacent crime to insurrection. Mr. Smith’s indictment, though, claimed that Trump “is responsible for the events at the Capitol on January 6,” despite not charging him with insurrection. Instead, he brought a grab bag of other charges, including one intended for use against financial fraud.The Supreme Court narrowed that that charge against hundreds of January 6 defendants, though Mr. Smith maintains that he could have convicted President Trump on it, notwithstanding presidential immunity. Now, the tables are reversed, and the president-elect will soon have the power to issue pardons. It would be a unifying gesture were Mr. Biden to pardon his predecessor and successor for the insurrection that wasn’t.
