Smith files new indictment in Trump Jan. 6 case, adjusting for immunity decision

Special counsel Jack Smith filed a superseding indictment in his case indicting former President Trump for his actions seeking to subvert the 2020 election, retaining the same charges but striking some elements of the case in the wake of the Supreme Court’s immunity ruling.

The Tuesday filing comes after Smith presented the case against the former president to a second grand jury, which had not previously heard the matter. It likewise concluded charges were warranted against the president.

The superseding indictment is an effort by the special counsel to respond to a ruling earlier this summer by the Supreme Court, which held that Trump and other former executives retain broad immunity for core actions they took as president and are presumptively immune for other actions taken while in office.

While the indictment retains the original charges – a sign of Smith’s confidence in the evidence underpinning the case – it makes significant cuts in an effort “to respect and implement the Supreme Court’s holdings.”

The filing removes former Justice Department attorney Jeffrey Clark as an unnamed, unindicted co-conspirator in the case, a reflection of specific instructions from the Supreme Court that said Trump’s conversations with Justice Department officials were protected from prosecution. 

Trump was prepared to install Clark as acting attorney general so that he could investigate his baseless claims of election fraud.

The filing also bumps up by a day the date that prosecutors argue Trump’s conspiracy to remain in office began — Nov. 13, 2020.

The superseding indictment is 10 pages shorter than the original, cutting lengthy examples from the original “speaking indictment” that walked through the evidence against Trump and his plots to remain in power.

But the new filing takes pains to distinguish various elements of Trump’s efforts to unwind the election as actions taken purely in a private capacity – and thus conduct that can be prosecuted.

Trump on his social media site called it “an effort to resurrect a ‘dead’ Witch Hunt” and move by Smith to “save face.”

“Deranged Jack Smith, has brought a ridiculous new Indictment against me, which has all the problems of the old Indictment, and should be dismissed IMMEDIATELY,” Trump wrote.

Trump’s ‘personal’ role

Republican presidential nominee former President Donald Trump gestures after speaking at the National Guard Association of the United States’ 146th General Conference, Monday, Aug. 26, 2024, in Detroit. (AP Photo/Paul Sancya)

The indictment retains its focus on Trump’s knowledge that he was spreading false claims about his loss in the election.

But the document includes new efforts to indicate Trump’s lies about the election were spread in a campaign capacity, not through his role as chief executive, at one point describing Trump “as a candidate and as a citizen.”

The special counsel zeroed in on Trump’s speech to supporters before they stormed the Capitol as his “giv[ing] a Campaign speech at a privately-funded, privately organized political rally.” 

It discusses his once-abundant activity on Twitter, now known as X, noting that he regularly used the account “for personal purposes–including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6” as well as pressure then-Vice President Mike Pence to buck his ceremonial duty to certify the election results and to “leverage the events at the Capitol on January 6 to unlawfully retain power.”

The indictment does, however, cut specific lies Trump told about the election throughout the filing as well as examples of instances in which advisors informed him they were false.

And while the new indictment cuts the reference to Clark, it shifts its descriptions of others in the case, describing them as “private” attorneys and a “private” political consultant. Though unnamed in the document, the descriptions leave the group identifiable as Rudy Giuliani, John Eastman, Sidney Powell and Kenneth Cheeseboro – all attorneys who aided Trump in the plot – as well as advisor Boris Epshteyn.

It also notes lawsuits filed by Trump challenging the election in his capacity as candidate – “not as president.” Those suits also included false claims about election fraud.

The indictment also took aim at former Trump chief of staff Mark Meadows, writing that he regularly “handled private and campaign-related logistics” for Trump.

It also directly addressed the Trump campaign’s effort to submit fake elector certificates, writing that Trump “had no official responsibilities related to any state’s certification of the election results.”

Pence pressure campaign

Former Vice President Mike Pence Mike Pence speaks at a luncheon hosted by the Ethics and Religious Liberty Commission during a Southern Baptist Convention annual meeting Tuesday, June 11, 2024, in Indianapolis. (AP Photo/Doug McSchooler)

One of the riskier elements of the new indictment is the decision to keep allegations of a pressure campaign against former Vice President Pence intact, albeit reframed. 

Chief Justice John Roberts wrote in the court’s immunity opinion plainly that Trump has presumptive immunity for efforts to pressure Pence to take certain acts tied to his role presiding over the certification of the presidential election, because that role qualifies as official conduct. 

However, the chief justice left open the question of whether Trump’s specific conduct as alleged in the indictment would remain immune from criminal prosecution.  

In the superseding indictment, Smith reframed the allegations against Trump to zero in on Trump’s desire to remain in the White House — not dropping the underlying acts altogether, as the special counsel did in other sections that could run afoul of the Supreme Court’s ruling. 

“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,” the superseding indictment reads. “All of the conversations between the Defendant and Vice President described below focused on the Defendant maintaining power.”

It will be up to U.S. District Judge Tanya Chutkan to determine whether Trump’s attempts to sway Pence to certify alternate slates of electors stand up to the Supreme Court’s new tests, though the issue could still be appealed back to the Supreme Court.

Chutkan is set to meet with both parties during a Sept. 5 hearing and has also asked for a joint filing by Friday for two sides to lay out how they’d like to proceed now that the case is back in her courtroom.

Trump conversations with federal officials

Jeffrey Clark speaks during an event. (Yuri Gripas, Associated Press pool, file)

Though many of the allegations related to Pence remain intact in the new indictment, Smith removed references to certain conversations Trump had with the House minority leader and officials in Trump’s White House and Justice Department.

Notably, the update removes claims surrounding Trump’s campaign to leverage the Justice Department following the 2020 election to pressure key swing states into investigating his claims of fraud, a major component of the original indictment.

The Supreme Court’s immunity ruling had singled out those allegations as ones that could not survive.

“The President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” the majority opinion read.

The cuts mean that Clark, who at the time oversaw the Justice Department’s environmental division and, in an acting capacity, the civil division, is no longer an unindicted co-conspirator in the case. Clark is still charged alongside the former president in Georgia on racketeering and other state counts, however.

He celebrated the ruling in a post on X, writing that he “refused to reveal the President’s or DOJ’s confidences” in the various investigations into his actions promoting Trump’s baseless mass fraud claims following the 2020 election.

Smith’s indictment also removes numerous references to conversations Trump had with his White House advisers, including their repeated urgings for him to approve a message directing rioters to leave the Capitol on Jan. 6.

Prosecutors also cut some references to Trump’s Twitter habits, including a nod to a tweet where Trump wrote to those storming the Capitol that “we hear you (and love you) from the Oval Office.”

It also cuts a lengthy section reviewing pressure from White House aides to record a message to be shared on the platform encouraging the rioters to go home, striking references to those conversations and the comments Trump ultimately made. 

Prosecutors also removed a reference to a call Trump held with then-House Minority Leader Kevin McCarthy (R-Calif.) during the riot.

“Well, Kevin, I guess these people are more upset about the election than you are,” Trump said.

This story was updated at 6:01 p.m.