Special counsel Jack Smith filed a new indictment Tuesday against Donald Trump over his efforts to undo the 2020 presidential election that keeps the same criminal charges but narrows the allegations against him following a Supreme Court opinion that conferred broad immunity on former presidents.
The new indictment removes a section of the indictment that had accused Trump of trying to use the law enforcement powers of the Justice Department to overturn his election loss, an area of conduct for which the Supreme Court in a 6-3 opinion last month said that Trump was absolutely immune from prosecution.
The stripped-down criminal case represents a first effort by prosecutors to comply with a Supreme Court opinion likely to result in a significant revision of the allegations against Trump over his efforts to block the peaceful transfer of power. It was filed three days ahead of a deadline for Smith’s office to tell the judge in the case how they wanted to proceed in light of that opinion, which said former presidents are presumptively immune from prosecution for official White House acts.
The special counsel’s office said the updated indictment, filed in federal court in Washington, was issued by a grand jury that had not previously heard evidence in the case.
The original indictment included allegations that Trump tried to enlist the Justice Department in his failed effort to undo his election loss, including by conducting sham investigations and telling states — incorrectly — that significant fraud had been detected.
It detailed how Jeffrey Clark, a top official in the Trump Justice Department, sought to send a letter to elected officials in certain states falsely claiming that the department had “identified significant concerns that may have impacted the outcome of the election” and had asked top department officials to sign it, but they refused.
Clark’s support for Trump’s election fraud claims led Trump to openly contemplate naming him as acting attorney general in place of Jeffrey Rosen. Trump ultimately relented in his plan to replace Rosen with Clark “when he was told it would result in mass resignations at the Justice Department,” according to the original indictment. Rosen remained on as acting attorney general through the end of the administration.
The new case no longer references Clark as a co-conspirator. Trump’s co-conspirators were not named in either indictment, but they have been identified through public records and other means.
The Supreme Court said a president’s interactions with the Justice Department constitute official acts for which he is entitled to immunity, effectively stripping those allegations from the case.
It returned other allegations in the case, including that Trump sought to badger Vice President Mike Pence to refuse to certify the electoral vote count, to U.S. District Judge Tanya Chutkan to determine what constitutes an official act and what does not.
Chief Justice John Roberts wrote for the court that the interactions between Trump and Pence amounted to official conduct for which “Trump is at least presumptively immune from prosecution.”
The question, Roberts wrote, is whether the government can rebut “that presumption of immunity.”
Supreme Court Justice Ketanji Brown Jackson dissented from the ruling and, in an interview airing Tuesday with CBS News’ “Sunday Morning,” said: “I was concerned about a system that appeared to provide immunity for one individual under one set of circumstances. When we have a criminal justice system that had ordinarily treated everyone the same.”
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