Special Counsel Jack Smith Files Revised Trump Indictment in Election Subversion Case
Yesterday special counsel Jack Smith filed a revised, superseding indictment in the federal criminal case against Donald Trump for his attempts to overturn the results of the 2020 presidential election. The revised indictment attempts to address the Supreme Court’s flawed decision in Trump v. United States, which ruled that presidents have broad immunity against criminal prosecution for “official acts,” but was far from clear about exactly how far that immunity extends. On an e-mail list that we are both members of, Princeton legal scholar Kim Lane Scheppele posted a helpful summary of how the revised indictment differs from the original one, which she has kindly agreed to allow me to reprint here:
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Complying with the SCOTUS immunity decision, Smith seems to have scrubbed all “official conduct” evidence from the case and presented it again before a new grand jury, which brought forth this indictment. That move make it more difficult for the Trump legal team to claim that the case should be dismissed because the evidence presented to the grand jury was tainted. They’ve clean-teamed this all the way down.
- The indictment charges the same four crimes as before.
- But the indictment leaves out Jeffrey Clark as an unindicted coconspirator given what SCOTUS said about absolute immunity of the president in his conversations with the Justice Department.
- The indictment emphasizes that the other unindicted coconspirators are all PRIVATE citizens working on the campaign or as consultants. And it makes clear that the various other actors implicated and whose testimony will be called upon at trial are NOT talking with Trump in the scope of his duties as president.
- Crucial elements of the case are now attributed to CANDIDATE Donald Trump and Candidate Mike Pence so that it is clear that they are not interacting as president and vice president in the relevant conversations.
The Just Security analysis by Norm Eisen, Matt Seligman and Joshua Kolb had flagged which parts of the indictment they thought would stand and which would not – and that analysis was pretty spot-on – see https://www.justsecurity.org/98457/immunity-january-6th-chutkan/ and https://www.justsecurity.org/wp-content/uploads/2024/08/united-states-v.-trump-dC-%E2%80%93-annotated-j6-eisen-seligman-kolb.pdf
For a line by line comparison of the new indictment and the original, see Allison Gill’s post here. Lawfare and Jacob Sullum of Reason have also posted helpful analyses of the superseding indictment.
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