Washington — Special counsel Jack Smith filed a superseding indictment against former President Donald Trump on Tuesday in which he again accused Trump of resisting the peaceful transfer of power after the 2020 presidential election. Smith narrowed the allegations after a landmark Supreme Court ruling on presidential power earlier this year.
The new 36-page charging document is based on a more refined set of allegedly criminal acts after the Supreme Court ruled Trump was immune from prosecution for some of the conduct included in Smith’s original 45-page indictment returned last year.
Prosecutors maintained the four counts against Trump that he previously faced — including conspiracy to defraud the United States — but limited the evidence included in the indictment and even removed one unnamed individual from a list of unindicted co-conspirators. The original indictment described that person as “a Justice Department official who worked on civil matters and who, with the defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.” It was believed to be Jeffrey Clark, who led the Justice Department’s Environment and Natural Resources Division and later served as acting head of the Civil Division.
Smith and his team said a federal grand jury in Washington returned the superseding indictment Tuesday. Prosecutors said they did not oppose waiving Trump’s appearance at an arraignment on the new charging document.
Again detailing alleged acts like organizing fake slates of presidential electors or working with his private attorneys on a legal strategy to subvert the transfer of power, Smith accused the former president of using his role as a candidate for office — not as president of the United States — to overturn the election results.
The new superseding indictment is a response to last month’s Supreme Court ruling in which the court’s conservative majority ruled presidents and former presidents are immune from criminal prosecution for “official acts” they take during their presidency. Some of the conduct alleged in Smith’s original indictment, such as Trump’s discussions with the Justice Department in the aftermath of the 2020 presidential election, was disqualified, according to the July opinion written by Chief Justice John Roberts.
Roberts divided presidential conduct into three categories: official acts that are part of presidents’ “core constitutional powers;” other official acts that fall outside their “exclusive authority;” and unofficial acts. Presidents have “absolute” immunity for the first category; “presumptive” immunity for the second, which can be rebutted by the government; and no immunity for the third.
In applying that legal test, the high court ruled the charges against Trump could not be tied to conduct related to his official responsibilities as president. Other alleged conduct contained in charging documents — including Trump’s interactions with then-Vice President Mike Pence ahead of the Jan. 6, 2021, certification of Electoral College votes by Congress — is a closer call, according to the Supreme Court. Other actions tied to campaigning is likely fair game for prosecution, the court said.
In a concurring opinion, Justice Amy Coney Barrett said she believed Trump’s alleged attempt to organize false slates of electors is private and “therefore not entitled to protection.”
Lawyers for Trump also conceded during arguments before the justices in April that some of the acts contained in the indictment entailed “private” conduct that could not be shielded from criminal charges, such as those involving outside lawyers who helped execute the alleged scheme to submit fraudulent slates of electors.
The high court tasked the judge overseeing the case, U.S. District Court Judge Tanya Chutkan, with parsing Smith’s indictment to determine which alleged acts were “official” and “unofficial.”
After the mandate returned to her court following the Supreme Court’s decision, Chutkan asked prosecutors to file a brief outlining their arguments for a path forward in the case by August 30. A hearing in the case is set for September 5.
By filing the superseding indictment against the former president, the special counsel appears to have opted to forgo a possible evidentiary hearing in the case that would have forced prosecutors to publicly reveal the evidence they collected against Trump ahead of trial.
Smith charged Trump over a year ago with four counts tied to his conduct after the 2020 presidential election. Prosecutors alleged the former president conspired to subvert the peaceful transfer of power through a pressure campaign at the state and federal level that culminated in the Jan. 6 Capitol attack.
Trump pleaded not guilty to those original counts and has denied all wrongdoing.
Much of the conduct alleged in that first indictment remains in Smith’s new charging documents, with notable exceptions, including the former president’s work with Justice Department officials and references to “co-conspirator 4.” The Supreme Court ruled such conduct was absolutely immune from prosecution as they said it fell squarely within Trump’s exclusive constitutional authority.
Prosecutors accused Trump of working to pressure state officials to overturn their election results and said he and five unnamed co-conspirators worked to assemble a slate of alternate electors ahead of the election certification in Washington, D.C.
Notably, the new indictment also repeats allegations that Trump tried to “enlist” Pence in his alleged scheme, but clarifies that prosecutors view Pence not as a vice president in this matter, but as Trump’s running mate in a political race.
But the document eliminates at least one call between Trump and Pence, on Dec. 29, 2020, in which the former president allegedly relayed to him the false claim that the Justice Department was finding “major infractions.” It also appears to no longer include mentions of Trump’s discussions with White House lawyers or agency heads about the integrity of the 2020 election, such as assertions from high-ranking government officials that there was no evidence of widespread voter fraud.
