Is Jack Smith Special Counsel pirouetting back to Jan 6th

Now that both Biden and Pence have been found to have classified documents it would appear that charging Trump for that becomes a non-starter

Mike Pence has been called to testify before the grand jury regarding his part in the Jan 6th fiasco. Either Smith is just going through the motions or he really does want to charge Trump with the inconceivable to appease the liberal base.

But as many legal experts point out the case against Trump is dubious at best and would set a nasty precedent that suggests people can be charged with crimes for pushing legal theories that others disagree with. Imagine a Judge ruling that someone's legal theory was wrong, and then having a bailiff take that person away in cuffs for being wrong. That is what this case at the end of the day is about. I quote Andrew McCarthy

It is a hard case to make because, in essence, the Justice Department would be arguing that a frivolous legal theory at some point transmogrified into a felony fraud and obstruction. That would be a promiscuous precedent for federal prosecutors to set — frivolous legal theories are very common, and it’s always been thought that, for the sake of promoting zealous legal defense, we should be content to rebuke such theories without criminalizing them.

To be clear, McCarthy has always been firmly against both Trump's theories on the electors as well as a 100% convinced that Trump is guilty of breaking laws in terms of classified documents. In other words, McCarthy is not (as some claim) pro-Trump. In fact, he has been way more "anti-Trump" than pro-Trump on most all of these arguments. The exception here is that while he believes Trump was out to lunch by suggesting that there was a means for the Electoral College results to be overturned by Congress he doesn't see it as a crime.

Now not to question McCarthy too much, but there appears to be many historical events that show that there always the constitutional intent to allow for Congress to overturn an election. The entire concept of alternative electors has been used many times and never suggested to be unconstitutional or illegal. But even those events suggest that the refusal to certify the election (by officially counting the votes) would need to be followed by several other actions before a electoral college vote victory would be overturned. Pence refusing to officially count the votes on Jan 6th as a standalone would be perfectly worthless.

When Smith first took the reigns as Special Counsel it was assumed it would be to charge Trump with housing classified documents. I still believe that as "obvious" as some people believe this case is, there are plenty of nuances that made it difficult for Garland to pull the trigger on. It would be humiliating for Garland to have charged Trump and then not been able to prove the case. It would still be humiliating if Smith were to do so, but it would leave Garland out of the mix. And to be clear, with a political case such as this, there are too many variables involved. Trump's claim to have declassified the documents means Smith would have to have "prove" what the correct way would have been (when there is no such guidance). Trump would file about 100 different motions that would need to be considered and all it would take is for one or Trump supporters to be on the jury and prosecution becomes almost impossible.

All that being said, It is my view that it would be even harder to prove the Jan 6th case. The fact that it is the best option is not because of the law, but because the politics made the more obvious (and easier) course all but impossible. It is inconceivable that Smith could get 12 people all on the same page in understanding constitutional law to the extent that they would believe that Trump's theory was so wrong that it would be considered criminal. Even if they could prove that the theory was wrong, they would have to prove that Trump knew it was wrong. Then they have to still combat the President's public calls for peace and no violence and demand that somehow his dubious legal theories caused a riot in spite of him demanding the opposite.

Lastly, the defense is going to go scorched earth on the politics of Jan 6th. They will attack the lack of preparation. They will blame Pelosi and Schumer for not doing their jobs. They will go after the FBI and demand FBI disclosure on what they knew and how many plants were there.

They will question the "narrative" by promoting the other side of things that the media has ignored. How many of the protesters were "really" there to cause trouble and how many were actually violent versus how many were just pulled in and charged. Were things really as bad as they are made out to be? They will get granule (when the Democrats and media like to play it big picture). Spoiler alert - there were way less people interested in violence than everyone in DC is wanting you to believe.

In other words, they will put the entire manner in which Jan 6th was handled by everyone... on trial. I am not sure anyone on the left (the Biden Administration, Democrats in Congress, the FBI, the DOJ) really wants that.