Donald Trump has announced that he expects to be indicted soon for his role in the Reichstag fire riot at the Capitol Building in January 2021. Per the Epoch Times:
Former President Donald Trump said that he received a letter on July 17 informing him that he is a target of the special counsel investigation of the Jan. 6 Capitol breach.
Mr. Trump said the Sunday letter from special counsel Jack Smith gave him four days to report to a grand jury. In a message posted on his social media platform, Truth Social, the former president suggested that the short deadline may mean he would be arrested and indicted.
Mr. Trump called the letter “HORRIFYING NEWS for our country” and framed it with the backdrop of the two other indictments he is facing amid a heated presidential reelection campaign in which he dominated the GOP field.
Well, maybe special counsel Jack Smith has uncovered evidence, hitherto unknown, that Mr. Trump directed the actions of the cosplay insurrectionists. As Andy McCarthy has pointed out, the seditious conspiracy indictments on which the government won convictions earlier this year rejected that theory.
It is not enough to say that the government did not allege that Trump directed the Proud Boys, and that the government never alleged that Donald Trump was an unindicted coconspirator in the Proud Boys prosecution. In fact, prosecutors fought off the defendants’ self-serving attempts to argue that they were being used as scapegoats for Trump and others wielding power.
All that the then-President did – and it was disgraceful enough – was make a rabble rousing speech and sit idly by when it had consequences that he may or may not have foreseen or intended. Long ago, in Brandenburg v. Ohio, the Supreme Court set very stringent criteria for punishing even the open advocacy of illegal acts. In the words of the Court’s syllabus summarizing its unanimous decision:
Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
To my mind the likelihood is nil that an experienced prosecutor would expect an indictment based on Trump’s speech to the January 6th crowd to lead to a conviction. If one is in fact handed down (again, assuming no newly found evidence of a Trump-led conspiracy), it will be a political rather than a legal document, put forth in the hope of affecting the next election and with the sure knowledge that it has no chance of passing muster with the courts.
As a political act, an indictment would serve the Democratic Party’s purposes well, as it would validate Donald Trump’s claims of martyrdom and all but guarantee his nomination as the Republican Presidential candidate, to be followed by his all but guaranteed defeat. That would be an odious and dangerous game for Mr. Smith to play, though I suppose that we have entered an era in which nothing is unimaginable.
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