WASHINGTON — Special counsel Jack Smith is pressing forward with his 2020 election inference case against Donald Trump, with a new indictment that aims to salvage the prosecution after the Supreme Court slammed the door on the possibility of a trial before the November election.
The new indictment, filed Tuesday in Washington, includes the same criminal charges, but narrows the allegations in an attempt to comply with the Supreme Court’s ruling that former presidents have broad immunity from prosecution.
Here’s what to know about the case and what happens next:
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In its ruling last month, the Supreme Court’s conservative majority said former presidents are absolutely immune from prosecution for official acts that fall within their “exclusive sphere of constitutional authority.”
Furthermore, former presidents are at least presumptively immune for other official actions, the Supreme Court said, but prosecutors can try to make the case that those allegations remain part of the indictment. But former presidents do not enjoy immunity for unofficial, or private, actions, the justices said.
As a result, the Supreme Court said Trump is immune from prosecution for conduct involving his interactions with the Justice Department, effectively stripping those allegations from the indictment. The justices sent the case back to U.S. District Judge Tanya Chutkan to analyze what other allegations could potentially proceed to trial.
In rewriting the indictment now, Smith’s team aims to make that job easier for Chutkan by removing references to allegations it believes could be considered official acts for which Trump could be entitled to immunity.
The new indictment does away with any reference to Trump’s interactions with Justice Department officials, whom prosecutors alleged he tried to enlist in his failed effort to undo his election loss. Prosecutors alleged Trump tried to use the Justice Department to conduct sham election fraud investigations and send a letter to states falsely claiming that significant fraud had been detected.
The new indictment also deletes details about Trump’s communications with certain other federal government officials, like the Director of National Intelligence and senior White House attorneys, who prosecutors say told Trump that his election fraud claims were false.
It also adds language designed to back up prosecutors’ contentions that the actions that form the basis of his case were taken by Trump in his personal capacity as a candidate rather than his professional capacity as president.
For example, the new indictment says Trump “had no official responsibilities” related to Congress’ certification of the 2020 election, “but he did have a personal interest as a candidate in being named the winner of the election.”
The first page of the old indictment refers to Trump as the 45th U.S. president. The new indictment says only that Trump “was a candidate for President of the United States in 2020.”
It also deletes references to certain Trump statements made from the White House, like the video Twitter message he had taped from the Rose Garden in which he asked his supporters at the Capitol on Jan. 6, 2021, to go home but reassured them, “We love you, you’re very special.” But comments Trump made during his speech near the White House before the riot remain in the indictment. That was a “campaign speech at a privately-funded, privately organized political rally,” the indictment says.
Smith’s team noted that a new grand jury that had not previously heard evidence in the case brought the indictment. That move was likely designed to prevent Trump’s lawyers from arguing that the entire case was tainted because the grand jury that brought the original indictment heard evidence the Supreme Court now says must stay out.
Trump remains charged with four counts: obstruction of an official proceeding, conspiracy to obstruct an official proceeding, conspiracy to defraud the U.S. and conspiracy against the right to vote. While the Supreme Court ruled in a different case in June that the Justice Department applied the obstruction charge too broadly against Trump supporters who stormed the Capitol, prosecutors kept that charge against Trump, suggesting they believe it will survive review in his case.
The indictment maintains a slew of allegations against Trump, including that he pressured state officials to subvert the results of the election and participated in a scheme orchestrated by allies to enlist slates of fraudulent electors in battleground states who would falsely attest that Trump had won in those states. Trump “had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote,” the new indictment says.
It also retains allegations that Trump sought to pressure Vice President Mike Pence to reject legitimate electoral votes and that Trump and his allies exploited the chaos at the Capitol on Jan. 6 in an attempt to further delay the certification of President Joe Biden’s victory.
Trump acted with predictable fury, railing against the new indictment on his Truth Social platform as an act of “desperation” that has “all the problems of the old Indictment and should be dismissed IMMEDIATELY!”
He also asserted that Smith had revised the original indictment to “circumvent” the Supreme Court ruling, but the exact opposite is true: in paring down the case and the allegations, the special counsel’s office was clearly trying to comply with, rather than get around, the spirit of the opinion.
Trump also claimed that by bringing the new indictment, the Justice Department violated an internal “policy” against any investigative action that could affect a campaign within 60 days of an election.
But the reality is more complicated, and the policy he cited about the indictment is actually more an informal and unwritten practice than a hard-and-fast rule.
It is true that longstanding Justice Department guidance cautions against taking overt investigative action in the run-up to an election. Memos from attorneys general issued over the years say prosecutors should never pursue criminal charges or visible steps — such as executing a search warrant — for the purpose of affecting an election.
The goal is to avoid raising fresh allegations against a candidate that the candidate might not have sufficient time to respond to, or that voters might not have enough time to absorb before casting ballots. But that guidance wouldn’t seem to be relevant here, in part because the revised indictment doesn’t include any new claims against Trump for voters to consider — to the contrary, it actually subtracts allegations against him.
The case is now back in Judge Chutkan’s hands, but it doesn’t mean a trial is going to happen anytime soon. There will likely be months of legal wrangling over which allegations involve official conduct that should be struck from the indictment.
On Friday, Smith’s team and Trump’s lawyers are due to propose a schedule for future proceedings in light of the Supreme Court’s ruling. And the two sides are scheduled to be back in Chutkan’s courtroom next week for the first time in months to discuss the path forward.
Trump’s lawyers could mount new efforts to dismiss the case. His legal team has sought at every turn to delay the criminal cases against him and may ask for more time to determine the impact of the Supreme Court’s ruling.