Mark Levin (on FOX, 8/4) is very deeply upset that Prosecutor Jack Smith refused to charge Donald Trump with using speech and words to foment an insurrection on Jan. 6, 2021. Rant here. Levin:
"This indictment, Mr. Barr, is crap! And the reason they didn't bring insurrection, and seditious conspiracy is because there was no insurrection and seditious conspiracy. …"
Levin equates the gravitas of crimes by how juicy their names sound (Sedition !!! Insurrection !!! Blimey!!!). He seems to be watching the Adams Chronicles, taking snuff and waving a quill pen menacingly ('By my steed these scratched words shall alert the delegates at Philadelphia!')
Levin makes a good point; and Prosecutor Jack Smith agrees with him. An insurrection or sedition conviction against Trump would be virtually impossible to win. Unlike the word 'sedition,' the words 'criminal conspiracy' and 'defraud' are deeply embedded in everyday criminal law and in mountain ranges of case law. To use 'insurrection' or 'sedition' as the fundamental basis for a criminal indictment is bad winning strategy. It's like going straight down the steepest, hardest part of the mountain instead of the bunny trail around the corner. It's just a real big gushy loser.
What is reliably prosecutable under the U.S. Code is the commission of specific acts and actions, including the formation and operation of a criminal conspiracy. These are rugged, time-worn legal tangibles. Sedition and insurrection have very little case law behind them and the cases which exist are so scattered over time and context to be unreliable as guidance (pick anyone you want; they all say different things). If a group is blowing up buildings and say they want to overthrow the U.S., you convict them for blowing up the buildings -- not for saying they have a seditious reason for doing so. Maybe they just like blowing up buildings. Who really knows?
"The third set of indictments is based on credible evidence of Trump’s conspiring to hinder or undo the final certification of the Electoral College votes in Congress ... The evidence and testimony laid out in the January 6 House select committee’s hearings are not imaginary or false; they plainly support the misconduct charged in the most recent indictment."
Trump's lawyer-for-the-day, John Lauro, has repeatedly admitted that Trump did try to 'hinder and undo' the electoral vote certification, but offers this Eddie Haskell-ish twist: that Trump merely suggested there be a 10-day 'pause' in the certification of state electors' ballots by Congress on Jan. 6, 2021; and Trump's 'suggestion' was protected 1st Amendment political speech.
Statements by an attorney made on behalf of their client are treated in criminal trials as if the accused said the words themselves. Lauro, in trying to give succor to Trump supporters, has repeatedly admitted the essential facts (and interpretation of those facts) which buttress the indictment. It's as if Lauro admitted his client did rob the bank but did so only because he didn't get his free toaster.
Lauro makes these disastrous factual admissions because he has no choice. Lauro has to say something to give succor to Trump's base; and on a near-daily basis. He must keep them from abandoning Trump and no longer funding his legal defense. This is a survival-level need. Lauro's fanciful re-spinning of Jan. 6th gives Trump's base the false and self-righteous narrative they crave.
The price of this news-cycle succor is that Lauro, and therefore, defendant Trump, have now repeatedly admitted the essential factual elements of the case before a trial date has even been set. Lauro has done so in a manner which cannot be walked back -- and can be immediately presented by the prosecution to the Court as fresh, credible evidence. Why would Lauro do this?
The simplest explanation is that Lauro knows that once jury selection begins, the case is over. Lauro knows they have no chance at trial. As such, there is no real wounding by now admitting the essential facts of the indictment (ie., that Trump did want the certification to stop and did try to stop the certification) in order to give immediate succor to Trump's base. It's a trade-off. Lauro's admissions are so disastrous at any future trial that the only rational conclusion one can draw is that he doesn't care. Lauro knows if this case ever gets to a jury, he has lost.
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"If the facts are not on your side, argue the law. If the law is not on your side, argue the facts. When neither the law nor the facts are on your side, pound the table" -- Michael Gerhardt. He is the Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law. He is the author of several books, including the forthcoming “The Law of Presidential Impeachment.”
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