New Trump Indictment Tries to Salvage Case after Supreme Court Ruling

The Washington Post / Devlin Barrett, Perry Stein

17:38 JST, August 28, 2024

Special counsel Jack Smith filed an updated indictment Tuesday against Donald Trump in a bid to salvage and strengthen the historic election obstruction case, following a Supreme Court ruling that granted broad immunity to presidents for official acts and sharply criticized the prosecutor’s approach.

The superseding indictment comes as a critical window was closing for Smith. In about 10 days, a Justice Department policy known as “the 60-day rule” will take effect forestalling any new filing of charges against the former president, who is again the Republican nominee for the White House.

In a written notice to the U.S. District Court for the District of Columbia, Smith said that the indictment was filed “by a new grand jury that had not previously heard evidence in this case” and that it “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions.”

Trump faces the same four charges related to his alleged attempts to overturn Joe Biden’s 2020 election victory. Smith said he will not seek to have Trump arraigned again on the new version of the indictment and still expects to make a joint proposal with the former president’s defense lawyers this week about how to schedule new pretrial hearings.

In response, Trump posted on social media that the special counsel was trying to “resurrect a ‘dead’ Witch Hunt in Washington, D.C., in an act of desperation.” He declared the superseding indictment “ridiculous” and called for it to be immediately dismissed as an attempt to interfere with the November election.

The original 45-page indictment has been reduced to 36 pages, after prosecutors removed allegations that the Supreme Court’s conservative supermajority said were wrongly filed. Specifically, those allegations related to an effort by Trump in late 2020 to make the Justice Department support his false claims of voter fraud.

Even a whittled-down indictment could end up the subject of protracted fights between the special counsel and Trump’s attorneys about what is allowed to be charged, or used as evidence – battles that once again may have to be settled by the Supreme Court.

Anthony Coley, a former spokesman for Attorney General Merrick Garland, said the superseding indictment makes mostly “minor tweaks to comply with a dubious Supreme Court ruling.” Coley said the prosecution story remains essentially unchanged: that “Trump ignored the facts and worked around the law to overturn the will of voters. This superseding indictment tells the full story within the parameters that the ultra-conservative majority of the Supreme Court have laid out.”

Trump is no longer accused of trying to force his Justice Department to conduct sham election fraud investigations and to urge state legislators to meet and choose fraudulent electors over legitimate ones. The Supreme Court ruled that interactions between a president and his Justice Department would be considered an official presidential act that is immune from prosecution.

The removal of those allegations also means the indictment no longer accuses someone referred to in the original document as “Co-Conspirator No. 4,” but who is identifiable from details in the indictment as former Justice Department official Jeffrey Clark.

Instead of six uncharged co-conspirators in the indictment, there are now five – most of them lawyers who advised Trump on his efforts to undo the results of the 2020 presidential election, according to details provided in the indictment. Smith revised his description of the five individuals to pointedly refer to each as “private” lawyers or a consultant, seeking to distinguish their conduct from official government acts.

The indictment is tailored to the Supreme Court’s criticism of Smith’s approach and the majority’s conclusion that a president or former president cannot be charged for official acts. The court also ruled that evidence of official acts for the most part cannot be used against a former president in a criminal trial. As a result, the indictment tries to underscore more clearly that Trump and his co-conspirators allegedly acted in their unofficial capacities.

“These co-conspirators included the following individuals, none of whom were government officials during the conspiracies and all of whom were acting in a private capacity,” new language in the superseding indictment says.

While adding that explanation, Smith removed a swath of allegations from the indictment, including many instances in which Trump allegedly interacted with federal officials and his White House staff.

For example, when laying out how Trump allegedly tried to pressure Georgia officials to overturn the state election results in his favor, the new indictment makes no mention of an instance in which Trump tweeted that Georgia officials verifying the election were “terrible people” – despite his chief of staff telling him that the officials were acting in an “exemplary fashion.”

That account was included in the original indictment and was probably removed because conversations between Trump and his chief of staff could be considered an official act and – under the Supreme Court ruling – not allowed as evidence against the former president at a trial.

The special counsel’s tailoring of the new indictment is clearly visible in its description of Trump’s alleged behavior during the Jan. 6, 2021, riot at the U.S. Capitol. Both indictments describe how Trump tried to exploit the violence and further delay the certification of the elections. They show how he tweeted through the attacks, saying that the election was a fraud and that Vice President Mike Pence lacked the courage to block the transfer of power.

The revised indictment, however, eliminates descriptions of Trump allegedly ignoring his White House advisers when they urged him to issue a statement directing the rioters to leave. And, unlike the original, the latest version does not reference a phone call that day between Trump and then-House Minority Leader Kevin McCarthy (R-Calif.). The indictment still describes the unnamed co-conspirators trying to communicate with U.S. senators.

The superseding indictment makes clear that Smith and his team believe the Supreme Court’s definition of presidential immunity does not extend to Trump’s conversations with state officials about the election. It includes many alleged conversations between Trump and state officials, including a description of his meeting with leaders of the Michigan state House and Senate in the Oval Office on Nov. 20, 2020.

Smith’s choices and deletions could have a ripple effect beyond this case. Already, Trump is fighting his New York hush money conviction for falsifying business records, arguing that some of the evidence shown to the jury included accounts of his discussions with White House staff. His lawyers say those should be considered official acts under the Supreme Court ruling issued in July.

The judge in the New York case is due to decide next month whether the immunity ruling should impact the hush money trial. Trump’s lawyers will probably argue that Smith’s choices in the superseding indictment support their contention that the New York verdict should be dismissed.