Several thoughts. First, some of these judgments may be revisited by a new DOJ. Second, those who think they know all the evidence involved in Trump's insurrection haven't been reading the news; more is emerging by the minute. There's increasingly evidence of criminal conspiracy.
https://twitter.com/AymanM/status/1347627168923332609
(PS) Incitement charges would view the words of Trump, Jr., Giuliani, and Brooks in a vacuum—i.e. assume that mere words are the entirety of the evidence against those individuals. The emerging evidence suggests that the attack on the Capitol was the result of a coordinated plan.
(PS2) Why was Trump's lawyer telling GOP senators to "slow it down" as a "strategy," even as Trump was inciting a crowd to think he'd go to the Capitol to interrupt the certification? Why did he flee to the White House? Why was he "pleased" at the attack?
(PS3) Andrew McCabe had it right: a full DOJ probe under Biden will interview *everyone* who was with Trump before the rally, during the rally, and at the White House afterward to determine the state of mind of Trump and his team regarding the attack on the Capitol Trump incited.
(PS4) Lest you think I'm in left field here: Harry Litman, who follows this feed and is a CNN legal analyst, is on CNN *right now* saying that Trump may be guilty of criminal conspiracy to impede an election—essentially conspiracy to commit election fraud—under federal statutes.
(PS5) I'd add that we don't know who this DOJ source is. If it's a spokesman for the apparent Trump stooge who's acting AG, it's wholly possible that talk of an incitement investigation is being downplayed to ensure that the DOJ isn't brought into the impeachment-or-25th debate.
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