Time to come clean on "insurrection" claim

Special prosecutor's report explains why Jan. 6 was not an insurrection

Photo by Lyle Muller

Political opponents called it a resurrection. But, so had several courts. Commentators had called it a resurrection. This column did, too, on Jan. 6 this year.

Former special prosecutor Jack Smith had news for all of us when he said the Jan. 6, 2021, U.S. Capitol riot that interrupted certifying the 2020 presidential election was not an insurrection. It could not be, Smith wrote in a final report to the U.S. Department of Justice, because the government action Donald Trump was trying to overturn happened while Trump led the government.

“The Office did 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,” Smith wrote, referring to the Office of Special Prosecutor that he led until resigning Jan. 10.

“… the Jan. 6, 2021, insurrection that grew out of a Donald Trump D.C. pep rally,” I called it in my column. Not fair and inaccurate, a reader on “X” wrote in so many words on the social media platform after reading the column. (I think we can dispense, now, with the ‘site formerly known as Twitter’ bit. Also, an earlier version of this column called the reader a conservative. He says he is not a conservative. “I don't fully agree with the base of either party. What I'm in favor of is disruption,” he wrote after reading this post.)

Back to the Jan. 6 column: “What did you see on TV that day?” I asked the reader, whom I do not know personally but with whom I have had some civil and appreciated disagreements, a rarety for X interactions.

“I saw a riot,” he responded. He then expounded on the federal statute definition of insurrection. I replied that I was referring to the common definition, non-legal definition, not the federal statute: “an act or instance of revolting against civil authority or an established government,” according to the Mirriam-Webster Dictionary.

Jack Smith noted non-legal definitions in his report but referred to the federal statute, Section 2383, when writing that the special prosecutor’s office determined that an insurrection did not happen. “To establish a violation of Section 2383, the Office would first have had to prove that the violence at the Capitol on January 6, 2021, constituted an ‘insurrection against the authority of the United States or the laws thereof,’ and then prove that Mr. Trump ‘incite[d]’ or ‘assist[ed]’ the insurrection, or ‘g[ave] aid or comfort thereto,’” the report stated.

A few sentences later: “The Office recognized why courts described the attack on the Capitol as an ‘insurrection,’ but it was also aware of the litigation risk that would be presented by employing this long-dormant statute. As to the first element under Section 2383 —proving an ‘insurrection against the authority of the United States or the laws thereof’ — the cases the Office reviewed provided no guidance on what proof would be required to establish an insurrection, or to distinguish an insurrection from a riot.”

And, then, a strong sense of logic: “In case law interpreting ‘insurrection’ in another context, one court has observed that an insurrection typically involves overthrowing a sitting government, rather than maintaining power, which could pose another challenge to proving beyond a reasonable doubt that Mr. Trump's conduct on January 6 qualified as an insurrection given that he was the sitting President at that time.”

Smith went on to write that he and his staff of lawyers thought reasonable arguments could be made that a fiery, defiant speech Trump gave supporters on Jan. 6, 2021, incited violence, especially because of Trump's “lengthy and deceitful voter-fraud narrative that came before it.”

Iowa U.S. Sen. Chuck Grassley got a letter about the investigation from Smith on Jan. 8 in Grassley’s role as the Senate Judiciary Committee’s chairman. Grassley said in a brief interview reported by Politico on Jan. 14 that he does not anticipate calling Smith or another special prosecutor who looked into Hunter Biden’s legal issues, David Weiss, to testify before his committee. He added that that could change.

Grassley previously has accused Smith of being biased against Republicans in the investigation and, last fall, called on Smith to preserve all of the investigation’se documents. He had not commented about Smith’s report as of mid-day Jan. 14. It will be interesting to hear his thoughts about the completeness of the report. Smith, in a letter accompanying his report, defended his staff’s impartial approach to the case and their integrity.

Smith knew that Trump — and his followers, based on his historical command of the narrative with them — would claim that the report exonarated Trump. He had a three-word response. “That is false.” Trump avoids prosecution because enough U.S. voters chose to make him the nation’s president, Smith wrote.

I write about the Smith report out of a sense of responsibility. I need to set the record straight after using the term insurrection in my previous column. What happened Jan. 6, 2021, technically was not an insurrection, the special prosecutor determined, and that makes sense in Smith’s report.

Rather, it was an alleged conspiracy to defraud the United States by attempting to lie about and cheat the results of the 2020 presidential election, obstruction and conspiracy to obstruct by causing his supporters to try blocking election certification, conspiracy against rights by trying to intimidate people into changing the election results, all of which are indefensible, a convincing special prosecutor’s report states.

There. Those saying the acts of Trump-supporting rioters at the U.S. Capitol on Jan. 6, 2021, were not an insurrection have a document that proves their point. They should feel free to share all of it with their friends.

Lyle Muller is a board member of the Midwest Center for Investigative Reporting and Iowa High School Press Association, a trustee of the Iowa Freedom of Information Council, former executive director/editor of the Iowa Center for Public Journalism that became part of the Midwest Center, former editor of The Gazette (Cedar Rapids), and a recipient of the Iowa Newspaper Association’s Distinguished Service Award. In retirement, he is the professional adviser for Grinnell College’s Scarlet & Black newspaper.