A conviction for insurrection would have prevented Trump from returning to office, but when Smith indicted Trump in August 2023, he didn’t charge him with insurrection. It shows that Smith did seriously consider whether the law applied but concluded he would struggle to convict Trump under it—not because what happened was not an insurrection, but because the laws were written too narrowly, such that although Trump appears to have violated the spirit of the law, he may not have broken its letter. Smith saw reasonable arguments that Trump’s actions met even the high legal bar the Supreme Court has set for incitement—“the evidence established that the violence was foreseeable to Mr.