"Clearly, there has been no insurrection. If there were even the possibility of one having occurred, he’d have been charged already (by Jack Smith). "
Not necessarily. Charging decisions can be made for strategic reasons. I think the alleged conduct would seem to meet the elements required for a prosecution for insurrection (as defined in the federal code). But there are other factors that go into the selection of charges.
I don't particularly know, but every specific crime has multiple elements whuch must be proven. For, say, a murder, one must prove that the victim died, as a result of actions by the accused, with some specific degree of intentionality that depends on the statute. Whatever those elements are, all must be met to establish guilt.
A prosecutor must consider:
1. Which charges might apply to a situation?
2. Of all of those, for which can a) an indictment be obtained, b) be proven in court, c) be sustained on appeal?\
3. Which defenses is the defednant likely to use and how strong are they?
It's been speculated that Smith chose not to indict for insurrection because he thought Trump might have a credible first amendment defense (his Capitol speech does not meet the Brandenberg standard) and also that he was concerned that because Trump was impeached for insurrection he might raise a double jeopardy defense.
We simply don't know.
Looking at the facts as spelled out in the indictment, I personally think he could have gotten an insurrection indictment had he wanted to. I would guess that something about the need to prosecute the case through trial and appeal dissuaded him from that charge but not ones he did bring.
"Clearly, there has been no insurrection. If there were even the possibility of one having occurred, he’d have been charged already (by Jack Smith). "
Not necessarily. Charging decisions can be made for strategic reasons. I think the alleged conduct would seem to meet the elements required for a prosecution for insurrection (as defined in the federal code). But there are other factors that go into the selection of charges.
And those mysterious “other factors” are...?
I don't particularly know, but every specific crime has multiple elements whuch must be proven. For, say, a murder, one must prove that the victim died, as a result of actions by the accused, with some specific degree of intentionality that depends on the statute. Whatever those elements are, all must be met to establish guilt.
A prosecutor must consider:
1. Which charges might apply to a situation?
2. Of all of those, for which can a) an indictment be obtained, b) be proven in court, c) be sustained on appeal?\
3. Which defenses is the defednant likely to use and how strong are they?
It's been speculated that Smith chose not to indict for insurrection because he thought Trump might have a credible first amendment defense (his Capitol speech does not meet the Brandenberg standard) and also that he was concerned that because Trump was impeached for insurrection he might raise a double jeopardy defense.
We simply don't know.
Looking at the facts as spelled out in the indictment, I personally think he could have gotten an insurrection indictment had he wanted to. I would guess that something about the need to prosecute the case through trial and appeal dissuaded him from that charge but not ones he did bring.