Just over a year ago, special counsel Jack Smith indicted former President Donald Trump over his attempts to overturn the results of the 2020 election. There was a bit of déjà vu then on Tuesday when Smith revealed that he had obtained a superseding indictment against Trump, keeping the same four charges in place but with the backing of a different federal grand jury.
When comparing the version that was handed up on Tuesday with the original from last year, the changes appear to be focused on deconflicting the charges against Trump with the Supreme Court’s recent rulings on the matter. Smith opted against the most cautious approach he could have taken, stripping the case down to its essence to fully bulletproof it from further Supreme Court intervention. Instead, he has chosen to attempt the strongest case available against Trump within the fetters that the court has now placed on him.
Smith has chosen to attempt the strongest case available against Trump within the fetters that the court has now placed on him.
The most obvious changes relate to the court’s sweeping decision in Trump v. United States. Chief Justice John Roberts’ majority opinion found that all presidents, including Trump, have absolute immunity from criminal charges for exercising their “core Constitutional duties.” Roberts specifically cited Trump’s communications with the Justice Department — in which he tried to force the DOJ to back his false election claims — as off-limits for prosecution.
Smith has complied accordingly, deleting the entirety of the DOJ evidence from the indictment’s narrative, along with any references to Justice Department officials pushing back on his lies about mass voter fraud. Former Justice Department official Jeffrey Clark is no longer an unnamed, unindicted co-conspirator. Also gone are any references to the White House counsel and most references to any conversations Trump might have had with people on his staff within the executive branch.
Beyond the absolute immunity for a president’s core duties, Roberts also ruled that there is “presumptive immunity” for things that fall within the scope of the president’s “remaining official actions.” It now falls to Smith to convince U.S. District Judge Tanya Chutkan which of Trump’s actions were “unofficial” and thus beyond the reach of this presumed immunity — but he is blocked from being able to use “official acts” as evidence to make the case for why immunity should not be granted. The special counsel has accepted that challenge with gusto.
In the new indictment, Smith carefully makes clear why many of the steps Trump and his allies took were in no way part of the president’s job. Nowhere is that more evident than when it comes to Trump’s pressure campaign against former Vice President Mike Pence. After numerous other avenues had failed, Trump leaned on Pence to simply declare him the winner when presiding over the electoral vote count on Jan. 6, 2021. The opinion in Trump v. U.S. hinted that those conversations between the president and vice president might fall within the scope of presumptive immunity, but Smith didn’t mince words in disagreeing:
The Defendant had no official responsibilities related to the certification proceeding but he did have a personal interest as a candidate in being named the winner of the election. All of the conversations between the Defendant and Vice President below focused on the Defendant maintaining power.
Moreover, Smith takes great pains to emphasize how many of the people acting on Trump’s behalf did so in the name of his presidential campaign, not his presidency. There are still six unindicted co-conspirators listed in the document, he writes, “none of whom were government officials during the conspiracies and all of whom were acting in a private capacity.” The new indictment also addresses the role of then-White House chief of staff Mark Meadows, who has attempted to use his former position as cover from being investigated or indicted. Smith now clarifies that Meadows “sometimes handled private and Campaign-related logistics for the Defendant” when describing Trump’s now infamous call with Georgia Secretary of State Brad Raffensperger.
Interestingly, the new indictment’s edits also appear to consider a second Supreme Court ruling as well. A few days before the decision in Trump v. U.S., the court ruled in Fischer v. United States, which considered the Justice Department’s use of a federal statute on obstructing an official proceeding. Roughly a quarter of the Jan. 6 defendants were charged under Section 1512(c)(2) for their role in disrupting the counting of electoral votes, according to the Justice Department.
Interestingly, the new indictment’s edits also appear to consider a second Supreme Court ruling as well. There was concern when the case was being adjudicated that the court might entirely invalidate two of the four charges against Trump. The 6-3 decision did narrow the scope of the law in question but did so in a way that let the charges against the former president stand. Roberts, again the author of the majority opinion, wrote that prosecutors must now show that defendants “impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so.” In the new indictment, Smith’s team has done just that. When describing the actual events of the Jan. 6 attack, the new version adds in more details about Congress’ work that day to certify the Electoral College’s votes, focusing on the documents that the rioters threatened after breaching the Capitol. With that shift, the prosecution now also highlights the timing of the attack and its aim of disrupting the vote count. “At approximately 1:11 p.m., the Vice President opened the certificates of vote and certificates of ascertainment that the legitimate electors for the state of Arizona had mailed to Washington, consistent with the [Electoral Count Act],” the indictment now reads. Two paragraphs later, having noted that Trump was back in the White House watching events unfold, the prosecution describes the Capitol being breached and forcing the Senate to recess. “At approximately 2:20 p.m., the official proceeding having been interrupted, staffers evacuating from the Senate carried with them the electors’ certificates of vote and their governors’ certificates of ascertainment,” Smith wrote. The superseding indictment is not guaranteed to kickstart the trial, which was originally scheduled to begin this past March. There are still several elements that will require Chutkan to rule on whether they can be included in his arguments. Trump’s lawyers are most likely to object to the prosecution’s references to his conversations with Pence, arguing that those discussions were within the scope of his office. But they may wind up throwing whatever they can into their filing to attempt to delay the proceedings further. And, thanks to the vagueness of the immunity test that Roberts put forward, whatever ruling Chutkan makes will likely be appealed. The matter may even make its way back up to the Supreme Court, as I predicted previously, giving the conservative justices another chance to cover for Trump. But Smith has done a lot of the heavy lifting to ensure that, should Trump lose in November, this case can continue forward into the next administration.
Hayes Brown is a writer and editor for MS NOW Daily. 
