Legal experts quickly identified on Wednesday that what is missing from special counsel Jack Smith’s newest indictment is as important as what is included.
The indictment hit former President Donald Trump with four new criminal charges: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.
But the charges do not include accusations of conspiracy for incitement of the Jan. 6 riot at the U.S. Capitol or a seditious conspiracy.
“One of the things that I was looking for [in the indictment] is — I assumed that Smith had this type of ‘A-ha!’ moment, that there’s something in there that the Jan. 6 committee didn’t find that supported, we heard about witness tampering — it’s not in there,” George Washington Law School professor Jonathan Turley explained on Fox News.
“The other thing that is not in here is conspiracy for incitement; not in here is a seditious conspiracy,” Turley continued. “Those were the claims that Democrats used in the impeachment and said the evidence was absolutely clear. … Well, the [charges] are not in here.”
Rather, Smith, according to Turley, is using the “favorite of prosecutors,” referring to vague charges of conspiracy and obstruction.
Former federal prosecutor Andy McCarthy agreed, accusing Smith of doing the “low-rent stuff that prosecutors are not supposed to do” by attempting to connect Trump to incitement without charging him with it outright.
“If you’ve got evidence that Trump committed incitement, then charge him with incitement. But, of course, I can say as somebody who actually successfully prosecuted a seditious conspiracy case, they don’t have a prayer of a case like that,” McCarthy explained.
“What Smith does here is kinda a nod and a wink,” he continued. “There’s a section [in the indictment] that’s called ‘exploiting the violence of Jan. 6’ — I forget exactly how it’s articulated, but he talks about exploiting it because he can’t accuse him of actually aiding and abetting it or committing it in any actionable way.”
The problem, of course, is that after the indictment was announced, Smith released a statement in which the lion’s share of his remarks focused on Jan. 6 and accused Trump of inciting the violence that day.
In that speech, according to McCarthy, Smith is exploiting Jan. 6 to prosecute Trump in the court of public opinion.
“That was one of the most demagogic presentations I’ve ever seen in a high-profile criminal case,” McCarthy said. “Anyone who listened to that, any normal person reacting to that, would assume that Trump was alleged to have carried out the Capitol riot. The entire presentation that he made was not about what the core charges in his case are, it was about the Capitol riot and the security personnel who were injured the Capitol riot.
“Then you turn to his indictment, he’s not charged with the Capitol riot,” he noted. “So if that’s what he has to resort to in order to sell his case to the public, I think that’s very telling in terms of how compelling his case is.”
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