What specific statutes (with citation) were invoked in Jack Smith’s Jan. 6 indictment and how have courts interpreted them?
Executive summary
Special Counsel Jack Smith’s Jan. 6 indictment, as described in his public report and testimony, rested chiefly on a conspiracy count under 18 U.S.C. § 371 and on charges that Trump obstructed and attempted to obstruct the Congress’s official proceeding to certify the 2020 election, invoking the federal obstruction statutes set out in Smith’s charging document [1] [2]. Smith also considered—but declined to use—the long‑dormant “insurrection” statute because precedent was sparse and legally risky [1].
1. The papers: which statutes the indictment actually invoked
Smith’s public materials state that the grand jury found probable cause to indict for “conspiring to obstruct the government function of selecting and certifying the President of the United States, in violation of 18 U.S.C. § 371,” and for “obstructing and attempting to obstruct the official proceeding on January 6, 2021,” under the federal obstruction provisions described in the indictment and Smith’s report [1] [2]. The Department of Justice’s Special Counsel report and Smith’s public statement lay out those charges as the legal core of the Jan. 6 case he pursued [2] [3].
2. What Smith left on the table: the insurrection statute and charging prudence
Smith explicitly told investigators and later Congress that he chose not to pursue an insurrection charge, despite some courts earlier concluding parts of January 6 met the statutory language of an “insurrection,” because the relevant case law was “scarce” and had arisen in contexts that offered little guidance for prosecution here—creating litigation risks in employing that long‑dormant statute [1]. That caution framed his charging strategy and is repeatedly invoked in his public testimony explaining why his team selected the statutes they did rather than broader, more novel charges [1] [4].
3. How courts have treated these statutes — precedent, scarcity and interpretive conflict
Smith’s report and subsequent testimony emphasize that courts have provided limited, uneven guidance on applying older statutes to a modern mass political disturbance, a gap that shaped prosecutorial choices [1] [4]. The scarcity of controlling precedent meant that using the insurrection provision posed uncertainty; by contrast, conspiracy under 18 U.S.C. § 371 and obstruction counts have a more developed body of federal practice to rely upon, making them the safer, more conventional vehicles for trying to tether specific acts to criminal liability [1] [2].
4. The political and procedural context that shaped interpretations
Smith’s public remarks and his House testimony note that legal interpretation did not happen in a vacuum: the Justice Department’s internal policies (including the advice against indicting a sitting president) and the fraught political environment influenced whether and how statutes were employed; both Jan. 6 charges and the classified‑documents case were later abandoned when policy barred prosecuting a sitting president, underscoring how remedies and interpretations are sometimes constrained by larger institutional rules [5] [6] [3]. Smith defended those decisions repeatedly in public hearings as grounded in law and prosecutorial prudence [7] [4].
5. Where disputes remain and why courts matter going forward
The central interpretive disputes identified in Smith’s materials—how broadly obstruction statutes reach, how to prove a conspiratorial agreement under § 371 in high‑level political conduct, and whether insurrection statutes can be applied to the events of January 6—remain contested partly because the case was not litigated to final verdicts after the indictments were dropped [1] [2]. Smith and multiple news outlets stressed that the evidence was deemed strong by prosecutors, but the legal community’s questions about statutory fits and constitutional contours will ultimately require judicial resolution in future prosecutions or appeals to settle [4] [8].