The Associated Press has reported that Special Counsel Jack Smith was granted a search warrant in January for records relating to President Donald Trump's Twitter account.

The search was part of an investigation of Trump's conduct following the 2020 election, which has since led to an indictment. However, some observers say Smith is blind to how weak the case really is.

"The First Amendment protects expression"

One of them is former Assistant United States Attorney Andrew C. McCarthy, who wrote in an op-ed piece for the New York Post earlier this month that "Smith intends to try Trump for the Capitol riot even though he hasn’t charged Trump for the Capitol riot."

McCarthy went on to point out that Smith's "45-page screed" contains no charges for rioting or "allegation of criminal incitement."

Also absent are any charges of seditious conspiracy, insurrection, as well as any "crime of violence of any kind." According to McCarthy, levying such charges "would have been untenable."

"The First Amendment protects expression, and especially political speech, that is aggressive, obnoxious and even false," the former assistant United States attorney stressed.

Trump called for his supporters to be peaceful

"The remedy for such speech is more speech — corrective speech — not criminal prosecution," he continued before adding, "Unless, of course, the speaker willfully conveys an intention to cause violence that is real and imminent."

However, McCarthy noted how Trump explicitly called on his supporters to conduct themselves peacefully as they marched towards the Capitol.

What's more, those instructions were followed by a series of tweets in which the then-president called for calm on January 6 even as the event began to devolve.

"Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!" he said at 1:38 p.m.

Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!

— Donald J. Trump (@realDonaldTrump) January 6, 2021

McCarthy says Smith attempts to "hide the ball"

This was followed by another tweet in which Trump declared, "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!"

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

Yet McCarthy complained that Smith's indictment "hides the ball" as "the prosecutor omits that inconvenient fact." He concluded by asking, "Will the courts let the Biden DOJ-appointed prosecutor get away with it?"