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The Charges That Were Notably Absent From the Trump Indictment

There was something noticeably absent when the special counsel, Jack Smith, unsealed an indictment this week charging former President Donald J. Trump with multiple conspiracies to overturn the 2020 election: any count that directly accused Mr. Trump of being responsible for the violence his supporters committed at the Capitol on Jan. 6, 2021.

The indictment asserted that as violence erupted that day, Mr. Trump “exploited the disruption,” using it to further his goal of stopping the certification of his loss in the election. But it stopped short of charging him with actually encouraging or inciting the mob that stormed the building, chasing lawmakers from their duties.

Still, the charging document, filed in Federal District Court in Washington, made abundantly clear that a group of aides and lawyers surrounding Mr. Trump were highly aware that he was playing with fire by pushing forward with his plan to pressure his vice president, Mike Pence, to throw the election his way during the congressional proceeding on Jan. 6.

While some of the aides and lawyers were aghast by what might, and ultimately did, take place, others seemed unconcerned, especially those who were later named as Mr. Trump’s co-conspirators in the case.

In one scene described in the indictment, a senior adviser to Mr. Trump warned the lawyer John Eastman just days before the Capitol was attacked that his plan to have Mr. Trump strong-arm Mr. Pence was “going to cause riots in the streets.”

According to the indictment, Mr. Eastman “responded that there had previously been points in the nation’s history where violence was necessary to protect the republic.”

More than 1,000 people have been charged so far with taking part in the Capitol attack, which caused millions of dollars’ worth of damage and injuries to more than 100 police officers. Among those accused are nearly 350 defendants charged with assaulting the police and 10 members of the Proud Boys and the Oath Keepers militia who were convicted at trial of seditious conspiracy, a crime that requires showing that physical force was used against the government.

In December, the House select committee investigating Jan. 6 recommended that the Justice Department charge Mr. Trump with several federal crimes, including inciting insurrection — a count that would have directly placed the blame for the attack on Mr. Trump’s shoulders. But Mr. Smith’s prosecutors did not include that charge in the indictment.

Instead, they focused on counts that detailed Mr. Trump’s wide-ranging machinations to remain in power in the weeks leading up to the attack and on how he took his time in issuing a plea for calm to his supporters once the attack was underway.

At a news conference announcing the charges, Mr. Smith asserted that the assault on the Capitol was “fueled by lies,” but over the course of its 45 pages, the indictment itself never quite makes that accusation directly against Mr. Trump.

And yet the charges did lay out how Mr. Eastman, who is identified in the indictment only as Co-Conspirator 2, and Jeffrey Clark, a loyalist in Mr. Trump’s Justice Department who appears as Co-Conspirator 4, understood and even accepted that violence might result from their plans to subvert the democratic process and keep Mr. Trump in the White House.

Three days before the Capitol was attacked, the indictment says, a deputy White House counsel told Mr. Clark that there had been no voting fraud sufficient to change the results of the election and that if Mr. Trump nonetheless maintained his grip on power, there would be “riots in every major city in the United States.”

Mr. Clark’s response, according to the indictment, was to bring up a federal law that allows the president to summon the military to quell domestic unrest.

“That’s why there’s an Insurrection Act,” he said.

For reasons that remain unknown, prosecutors chose not to include in the indictment any evidence from Cassidy Hutchinson, an aide to Mr. Trump’s former chief of staff Mark Meadows. In a gripping testimony last year in front of the House Jan. 6 committee, Ms. Hutchinson described how Mr. Trump, knowing his supporters were armed and threatening violence on Jan. 6, urged them to march to Capitol anyhow — and even sought to join them.

Ms. Hutchinson told the panel that Mr. Trump had demanded that security checkpoints be removed outside his rally on the Ellipse, near the White House, even though he had been warned that some in the crowd had been spotted with weapons.

“They’re not here to hurt me,” she quoted Mr. Trump as saying.

In theory, Mr. Smith’s team could bring new charges against Mr. Trump at almost any time, using accounts like Ms. Hutchinson’s to support an accusation that Mr. Trump played some role in encouraging the violence at the Capitol. The incitement charge recommended by the House committee is written quite broadly, making it a crime to “incite, assist with or participate in” a rebellion or an insurrection against federal laws or government authority.

Prosecutors could also try to connect Mr. Trump more directly with the violence through the statements made by scores of rioters charged in the Capitol attack who have said that they were answering Mr. Trump’s call when they traveled to Washington and joined in the assault.

“Hey we’re going back to Washington January 6 — Trump has called all patriots,” an Iowa woman named Deborah Sandoval wrote on Facebook on Dec. 21, 2020, two days after Mr. Trump summoned his followers to a “wild” protest in the city. “If the electors don’t elect, we will be forced into civil war.”

Still, prosecutors are often wary of bringing incitement charges because they typically involve behavior like speeches or social media posts that the First Amendment protects, within limits.

And Mr. Trump’s lawyers have already signaled that he intends to use a First Amendment defense against the charges he is facing.

During his speech before the attack, Mr. Trump did at one point tell his followers to march on the Capitol “peacefully,” and, after the building had been stormed, he posted messages on Twitter belatedly asking people in the crowd to “remain peaceful.”

But prosecutors say that even though he issued those calls, he did not ask his supporters to leave the Capitol grounds until after 6 p.m. that day. And as he made that request, the indictment said, he continued repeat his false claims that a “sacred landslide victory” had been “viciously stripped away” from him.

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