Jack Smith and the Hijacking of January 6

At the Thursday night presidential debate, CNN’s Jake Tapper acquitted himself, if not more fairly than expected, at least more subtly. Although the question Tapper posed to former president Donald Trump on the subject of January 6 seemed straight up, he based it on the falsehoods birthed by the House January 6 committee and given air by special counsel Jack Smith.

“As President, you swore an oath to preserve, protect, and defend” the Constitution,” asked Tapper. “What do you say to voters who believe that you violated that oath through your actions and inaction on January 6 and worry that you’ll do it again?”

As implied in Tapper’s question, the “actions and inactions” of President Trump on January 6 have become part of DC lore. Trump danced around the issue. To deconstruct the charges against him would have taken much longer than the allotted two minutes, and he would have lost the audience in the details. Shifting the blame to Nancy Pelosi, as Trump did, was probably a surer strategy. (READ MORE from Jack Cashill: Who Had Capitol Police Officer Brian Sicknick ‘Murdered’?)

True to form, the barely functional President Joe Biden mangled the “action” charges against Trump: “And they said they said — they said, no, no, this guy, this guy is responsible for doing what is being — was done.” He succeeded, however, in echoing the conventional wisdom on Trump’s inaction.

“The fact is,” said Biden, “that there was no effort on his part to stop what was going on up on Capitol Hill.” Although widely believed, this assertion is demonstrably false. Equally false, and believed just as widely, are the charges about Trump’s “actions.”

In his indictment of Trump, special counsel Jack Smith charged Trump both with doing too much and doing too little. This combination led to one count of “conspiracy to obstruct an official proceeding” and a second count of “obstruction of and attempt to obstruct an official proceeding.”

The Supreme Court ruling Friday in the case of Fischer v. United States will make it harder for Smith to pursue these obstruction charges against Trump, certainly along the lines he had hoped. Nonetheless, the Fischer ruling is no more likely to deter Smith in his pursuit than the wreck of the Pequod deterred Ahab in his. There are just so many great white whales.

Much has been said about how federal prosecutors rewrote a law designed to prevent the shredding of documents to snare January 6 defendants and Trump along with them. Little has been said, however, about how Smith contorted the sequence of events on January 6 to make an obstruction charge against Trump seem even plausible.

At the heart of his indictment is what Smith calls “the defendant’s exploitation of the violence and chaos at the Capitol.” According to Smith, the exploitation shifted into high gear at noon when Trump began his speech on the Ellipse.

To make his case Smith ignores Trump’s specific appeal early in the speech, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Smith is in good company. The House January 6 committee also ignored this exculpatory remark as did almost all corporate media.

In the indictment, Smith applies the terms “false” or “falsely” to Trump’s words no fewer than eighteen times. He works under the assumption that everything Trump said about the election was a lie if it varied from the official orthodoxy. That orthodoxy was at its most rigid in defining Mike Pence’s role as president of the Senate.

“All Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people,” Smith quotes Trump as saying. True, Trump made the recertification process seem much simpler than it ever could possibly be, but if he was deceiving anyone, he started by deceiving himself.

Despite his concern about “significant allegations of voting irregularities and numerous instances of officials setting aside state election law,” Pence announced via a tweet that he was going to count the votes as presented. He waited until about 12:55 to send this message. Trump finished his speech at 1:12 p.m. unaware of Pence’s intentions.

Smith quotes Trump as saying, “We fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” and follows this immediately saying, “During and after the Defendant’s remarks, thousands of people marched toward the Capitol.” He neglects to say, however, that Trump made this remark at 1:10.

At 12:53 the ubiquitous Ray Epps led the first wave of protestors through the lightly guarded perimeter on the Capitol’s west side, in Smith’s words, “by violently attacking law enforcement officers.” In reality, a policewoman fell down when protestors pushed over a bicycle rack, and a protestor promptly helped her back to her feet. Epps and crew did not attend Trump’s speech. Smith makes no mention of Epps.

Smith argues that this mass of people “broke through barriers cordoning off the Capitol grounds and advanced on the building.” He makes the lawyerly case that these people did so “at the Defendant’s direction,” but he knows that Trump was still speaking at the Ellipse, a 45-minute walk from the Capitol, when this action took place.

At 1:06, while Rep. Paul Gosar was challenging the certification of the Arizona vote in the House, Capitol Police deputy chief Eric Waldow made the inexplicable decision to launch a barrage of flash bangs, tear gas, and rubber bullets into the still peaceful crowd of protestors on the Capitol’s west side. The people that Trump allegedly incited with his “fight like hell” remark would not arrive at the Capitol for close to an hour.

At 1:28, 56-year old father of five, Kevin Greeson, collapsed after a Capitol Police flash bang exploded in his face. He would soon die of cardiac arrest. At 1:32, a Capitol Police officer was recorded on his bodycam objecting to the launch of smoke grenades: “It’s just going to make it worse. Hey stop, hold.” Protestors were picking up grenades and hurling them back behind police lines.

This borderline criminal barrage into the protestors’ midst turned a largely festive crowd angry.

“At 2:13 p.m.,” writes Smith, “after more than an hour of steady, violent advancement, the crowd at the Capitol broke into the building.” Those who listened to Trump speak at the Ellipse were not involved in this “hour of steady, violent advancement.”

The late Ashli Babbitt, for instance, the day’s most obvious fatality, stayed until the end of Trump’s speech and did not reach the Capitol until after 2 p.m. She entered the building at 2:23. Twenty minutes later a Capitol Police officer shot and killed this 14-year Air Force vet without warning, a tragedy explained in Ashli: The Untold Story of the Women of January 6.

At 2:38 p.m., Trump tweeted, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” At 3:13 p.m., Trump tweeted, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order — respect the Law and our great men and women in Blue. Thank you!”

Smith discounts Trump’s sincere pleas for reasons trifling enough to alarm a Jesuit. One was that Trump “did not ask rioters to leave the Capitol” and the second was that he “falsely suggested that the crowd at the Capitol was being peaceful.” History will remember Smith as the prosecutor who quibbled his way to a constitutional crisis.

At 4:17 p.m., Smith writes sarcastically, Trump “finally asked individuals to leave the Capitol, while telling them that they were ‘very special’ and that ‘we love you.’” Smith prefaced this comment with the remark, “Defendant repeated the knowingly false claim that “[w]e had an election that was stolen from us.”

Smith does not include Trump’s actual remarks on this video message, “You have to go home now. We have to have peace. We have to have law and order. We don’t want anybody hurt,” Nor does he mention that Twitter promptly applied a warning label, saying, “The claim of election fraud is disputed, and this tweet can’t be replied to, Retweeted, or liked due to a risk of violence.” Facebook blocked the post as well. (READ MORE: First, They Came for the J6ers)

It seems only fitting, I suppose, that Facebook and Twitter would have the last word. Had they not collaborated with the FBI in blocking the Hunter Biden laptop story, and had Biden’s 51 intel friends not filled the news void with their Russia lies, we would still remember January 6 as the Feast of the Epiphany and Joe Biden as just another “elderly man with a poor memory.”

Jack Cashill’s new book, Ashli: The Untold Story of the Women of January 6, is now available in all formats.

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