Just after midnight, Special Counsel Jack Smith’s office released its report on President-elect Donald Trump’s efforts to overturn the 2020 presidential election. The report’s concluding paragraph was clearly written for the history books. “The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind,” the Special Counsel writes. “Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
With the President-elect’s inauguration less than one week away, it is left to future generations to judge his attempt to overturn the results of the 2020 presidential election. In that regard, the Special Counsel’s report contains very little new information – a fact the prosecutors themselves recognize.
The report “sets forth a summary of key facts gleaned from the investigation, a vast majority of which are already a matter of public record through the litigation that occurred before the district court,” the Special Counsel’s office writes. This is hardly surprising. Much of then-President Trump’s scheme occurred in front of the American public’s eyes, including the inflammatory speech he delivered at the White House Ellipse on January 6th, as well as his many tweets spreading false claims of fraud and pressuring officials to act on them.
Still, several parts of the report are important for understanding the charges brought against Trump prior to his 2024 election victory. Three sections, in particular, are highlighted and discussed below.
Why the Special Counsel did not charge Trump with inciting an insurrection.
Much has been made of the fact that Trump was not charged with inciting an insurrection. However, the Special Counsel’s office explains why it declined to charge Trump under section 18 USC §2383, making it clear there are “reasonable arguments” to conclude he did just that. The report reads:
The Office determined that there were reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court’s standard for ‘incitement’ under Brandenburg v. Ohio, 395 U.S. 444,447 (1969) (holding that the First Amendment does not protect advocacy “directed to inciting or producing imminent lawless action and … likely to incite or produce such action”), particularly when the speech is viewed in the context of Mr. Trump’s lengthy and deceitful voter-fraud narrative that came before it.
Importantly, we are told that the Special Counsel found the “evidence established that the violence was foreseeable to Mr. Trump, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay.” (The report later refers to “strong evidence” supporting those findings.) However, the prosecutors “did not develop direct evidence – such as an explicit admission or communication with co-conspirators – of Mr. Trump’s subjective intent to cause the full scope of the violence that occurred on January 6” (emphasis added).
It is not clear what the Special Counsel’s office means by “the full scope of the violence,” nor why an intent to cause any of the violence that occurred on January 6 would be legally insufficient. It is, indeed, an odd phrase that could be read as leaving open the possibility that Trump had the “subjective intent” to “cause” some violence on January 6th. Still, “in light of the other powerful charges available” and the “unwarranted litigation risk” of charging Trump with inciting an insurrection under section 2383, the Special Counsel decided not to pursue that charge. The report also notes the litigation difficulties faced by the fact that “there does not appear to have ever been a prosecution under the statute for inciting, assisting, or giving aid or comfort to rebellion or insurrection.”
At bottom, the Special Counsel’s description of the evidence of Trump’s responsibility for the violence on January 6th is historically important on its own terms, and these passages in the Special Counsel report will help generations to understand the true record of events.
A significant hole in the advice-of-counsel defense: Trump pushed the “more aggressive” option on Vice President Mike Pence.
Had the case proceeded, the Special Counsel’s office anticipated that Trump’s legal team would rely on an advice-of-counsel defense. The newly released report significantly undercuts this possible defense in multiple ways, one of which is to identify more precisely what advice Trump actually received compared to the course of conduct he pursued.
In that regard, the report briefly summarizes a January 4, 2021 Oval Office meeting between Trump, Vice President Pence, two members of Pence’s Team (Greg Jacob, Pence’s counsel, and Marc Short, Pence’s chief-of-staff), and John Eastman, a lawyer who was advising Trump. This meeting was also covered at length in the January 6th select committee’s hearings and in its final report.
Eastman is identifiable as “Co-Conspirator 2” in the Special Counsel’s report, which summarizes the January 4 meeting as follows:
During the meeting, Co-Conspirator 2 [Eastman] outlined two ways that he claimed Mr. Pence could affect the election outcome using his role in the certification: he could reject the legitimate electors outright – denying Mr. Biden an electoral majority and likely sending the selection of the President to the House of Representatives, where fellow Republicans controlled the majority of state delegations – or he could send the elector slates to targeted states’ legislatures for them to choose which electoral votes should be counted – affording Republican-controlled legislatures the opportunity to reject Mr. Biden’s electors and replace them with Mr. Trump’s.
In response to Pence’s questioning, Eastman “admitted that both proposals violated” the Electoral Count Act of 1887, which had governed the election certification process for more than 130 years, and “were untested.”
Pence then turned to Trump, pointing out that his own lawyer, Eastman, did not think the Vice President had the authority to return electoral votes back to the states. Trump responded that he “like[ d] the other thing better,” which Pence understood to mean rejecting outright the certified electors from up to seven states. That move was intended to hand Trump the presidency on January 6, 2021 – as the election would be decided in the House of Representatives, where the Republican state delegations would have, according to this scheme, voted for Trump.
As Jacob explained to the January 6th select committee, Eastman thought this move – the one Trump liked “better” – was the “more aggressive” of the two. According to Jacob, Eastman advocated for the other option, which entailed sending the certified electoral votes back to the states, because it would be “more politically palatable.”
The Special Counsel’s office writes that the next day, January 5, 2021, Eastman advocated to Vice President Pence’s counsel (Jacob) and chief of staff (Short) that Pence “should unlawfully reject legitimate electoral certificates – an act that [Eastman] had previously recognized was not supported by the Constitution or federal law.” This “was a sharp reversal from his position just one day earlier” (during the January 4 meeting) and “happened only because Mr. Trump had made clear that it was his preferred strategy.”
Indeed, on the morning of January 5, Trump publicly pushed this “more aggressive” option tweeting: “The Vice President has the power to reject fraudulent chosen electors.” (Note: The electors were not fraudulently chosen.)
This part of the report is important because it shows daylight between Eastman’s legal advice and Trump’s conduct, and that gap is a significant hole in the advice-of-counsel defense.
Additional testimony showing the fake electors were duped.
The Special Counsel’s report may undercut some of the state-level prosecutions of false electors. That’s because the Special Counsel’s theory of the case – that the false electors were duped by lawyers working for Trump, including Rudy Giuliani, Kenneth Chesebro and others – is not necessarily consistent with state prosecutors’ theory of the case in charges levied against the false electors. (For example, in Michigan, all state-level false electors were indicted).
The Special Counsel writes that while Trump oversaw the fake elector scheme, his “co-conspirators deceived Mr. Trump’s elector nominees in the targeted states by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in Mr. Trump’s favor.” The “co-conspirators deliberately withheld from the elector nominees information showing otherwise.” Not all of Trump’s “elector nominees were persuaded,” and in some cases the Trump campaign had to find substitutes. For instance, the Special Counsel points to an elector nominee from Pennsylvania who declined to participate after determining that the plan was “illegal” and part of an effort “to overthrow the Government.”
Regardless, the Special Counsel alleges:
This deception was crucial to the conspiracy, as many who participated as fraudulent electors would not have done so had they known the true extent of the co-conspirators’ plans.
The footnote supporting that sentence contains a series of quotes from individuals chosen to serve as fake electors. “Nobody-nobody suggested, hey, you know what, let’s just get this signed because we’re gonna put pressure on … Pence on the 6th. Cause if I had known that was the plan, I wouldn’t have signed a contingent on it,” one Trump elector said. Several other Trump electors provided similar testimony. Notably, this evidence and the Special Counsel’s theory of the case is consistent with the House Select Committee’s findings and final report.
Conclusion
In sum, most of the facts underlying the case against Trump have been known for more than four years. And Trump’s intent was always clear. He wanted to obstruct the January 6th certification proceeding, during which his loss would be enshrined. Four years later, as the victor, he no longer faces criminal charges stemming from his conduct. In the time ahead, the judicial system’s attention to Trump’s alleged responsibility for the violence at the Capitol will play out in civil litigation brought by Capitol Police officers and members of Congress.