Special Counsel Jack Smith was granted a search warrant in January for President Donald Trump’s Twitter account records as part of an investigation into his conduct following the 2020 election. However, some observers, including former Assistant United States Attorney Andrew C. McCarthy, believe that Smith’s case is weak.
McCarthy highlighted that Smith has not charged Trump for the Capitol riot, even though he intends to try him for it. In his 45-page document, there are no charges of rioting or criminal incitement, nor any charges of seditious conspiracy or insurrection. McCarthy argued that according to the First Amendment, political speech, even if aggressive, obnoxious, or false, is protected, and criminal prosecution should only occur if there is a clear intention to cause real and imminent violence.
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!
— Donald J. Trump (@realDonaldTrump) January 6, 2021
McCarthy pointed out that Trump explicitly called for his supporters to remain peaceful as they marched towards the Capitol, and he followed up with tweets urging calm on January 6. However, Smith’s indictment fails to acknowledge these statements. McCarthy criticized Smith for attempting to hide these facts and questioned if the courts will hold the Biden DOJ-appointed prosecutor accountable for it.