Special counsel Jack Smith filed a new indictment against Donald Trump in the federal Jan. 6-related prosecution on Tuesday. The superseding indictment presents the same four charges, albeit in a shorter indictment, against the former president.
Smith explained in an accompanying filing that the superseding indictment was presented to a new grand jury that hadn’t previously heard evidence in the case and that it “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States,” referring to the July 1 immunity ruling.
In that ruling, the Republican-appointed majority said that Trump is absolutely immune for “core” constitutional acts, presumptively immune for all official acts but not immune for unofficial ones. The Supreme Court sent the case back to the trial court to determine what in the indictment survives the immunity ruling, a process that still needs to get underway. The latest indictment attempts to get ahead of that process by slimming down details from the initial indictment last year that the government thinks could have been objectionable under the immunity ruling.
For example, in describing the alleged conspiracy to overturn the 2020 election, the superseding indictment emphasizes that Trump’s alleged co-conspirators weren’t government officials at the time and were acting in their private capacity. That emphasis wasn’t included in the initial indictment.
Likewise, the special counsel’s office removed from its list of unindicted co-conspirators an unnamed Justice Department official — believed to be Jeffrey Clark — whom the initial indictment said “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.”
A joint status report detailing how the parties want to proceed is due Friday to the trial judge, U.S. District Judge Tanya Chutkan; Chutkan gave the Friday deadline before the superseding indictment was issued. Chutkan had extended the deadline after Smith asked for more time to formulate the government’s position — time the Justice Department apparently spent getting this superseding indictment.
While the new indictment may put the government in a better position to survive the immunity test, the Supreme Court will likely have the last word on the degree to which this superseding indictment can go forward to trial. That final determination won’t likely occur before November, and if Trump wins the presidency, he will be empowered to get rid of the case completely.
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