Special counsel Jack Smith has refined his election interference case against former President Trump, keeping the bulk of his original indictment in the wake of a Supreme Court decision granting former presidents broad criminal immunity.
The first words of Smith’s indictment no longer identify Trump as the 45th president of the United States, instead referring to him as a candidate for office.
It’s the first of many shifts Smith said was designed to “to respect and implement the Supreme Court’s holdings” after it determined that core presidential actions are protected from prosecution while other official actions are “presumptively immune.”
But while Smith takes steps to account for numerous directives from the Supreme Court, his filing also shows the team of prosecutors have preserved much of their case against Trump.
Here are five takeaways on the filing.
Jack Smith is not backing down
The filing shows Smith is not waiving the white flag despite the Supreme Court setback.
The decision directed prosecutors to remove all references to Trump’s plot to topple leadership at the Justice Department while elevating a lower-ranking official willing to investigate his baseless claims of election fraud. Though a key part of the original indictment, the court said those moves reflected a president conducting official duties.
But it left gray areas over whether some of Trump’s actions went beyond his core responsibilities as president and could be subject to prosecution, while complicating Smith’s job by stating that evidence related to an official act could not be used to support charges.
Still, the superseding indictment filed on Tuesday was not as heavily gutted as some may have expected, and retained all four of the original charges brought against Trump.
Smith signaled confidence in his case by keeping its core intact, though some supporting details did see edits.
The first test of his decision to push forward will come on Sept. 5, when U.S. District Judge Tanya Chutkan will hold a hearing to decide how to move forward after months on pause.
A pivot to private
The indictment recasts decisions Trump and people in his circle took to distinguish actions that were taken by people acting in a private or campaign capacity.
The filing accuses Trump of “us[ing] his campaign” to spread lies about the election and notes that all court challenges to the election were filed in his capacity as a candidate.
Trump’s speech near the White House on Jan. 6 was characterized 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.”
All of Trump’s unindicted co-conspirators in the filing now refer to them as “private” attorneys or strategists, a clear effort to distinguish the crew as outside contacts with no official government role.
Some White House staff acted also beyond the bounds of their official roles, Smith argued. He pointed to former White House chief of staff Mark Meadows, who regularly “handled private and campaign-related logistics” for Trump.
The indictment also takes a clear aim at Trump’s pressure campaign on state officials as they worked to organize a false slate of electors to submit to Congress. The indictment says Trump “had no official responsibilities related to any state’s certification of the election results” but instead had “personal interest as a candidate.”
Cuts and revisions abundant
Several allegations in the first indictment failed to make the cut for Smith’s superseding filing.
The special counsel eliminated references to conversations with the House minority leader during the Capitol riot.
The new charging papers also removed most reference to federal officials and erased allegations Trump sought to leverage the Justice Department to convince swing state officials to overturn the election in his favor.
Gone altogether is co-conspirator number 4, unnamed in the charging documents but identified as former DOJ official Jeffrey Clark.
At the time, Clark oversaw the agency’s environmental division, but Trump was prepared to install him as acting attorney general to investigate his election fraud claims. Clark is charged alongside Trump in Georgia and has pleaded not guilty.
Lengthy references to the scheme are removed entirely afterthe Supreme Court explicitly ruled that Trump is “absolutely immune” from prosecution over his discussions with Clark and other Justice Department officials. The court’s majority found that overseeing the agency falls squarely in a president’s constitutional authority.
The indictment similarly dumps conversations the then-president had with his White House advisers — including the simple fact that he “was notified repeatedly that his claims were untrue, often by the people on whom he relied for candid advice on important matters.”
The new indictment consistently trims false statements Trump told about the election when he was speaking with White House officials while including those when Trump was informed by “his own running mate and his campaign staff.”
Prosecutors also cut some references to Trump’s Twitter habits, including a nod to a tweet 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.
A second grand jury
Smith brought the superseding indictment after presenting the case to a second grand jury – a different set of at least 16 citizens from those who originally heard evidence in the case before charges were filed last August.
That marks the second time that a group of jurors has heard evidence about Trump’s actions to block the transfer of power and concluded that charges were warranted.
Trump described the filing as “merely an attempt to INTERFERE WITH THE ELECTION.”
“In an effort to resurrect a ‘dead’ Witch Hunt in Washington, D.C., in an act of desperation, and in order to save face, the illegally appointed “Special Counsel” 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,” he wrote on his social media site.
And while Trump called it “shocking” that Smith would “do this immediately after our Supreme Court Victory on Immunity,” the filing is a logical next step for a prosecutor directed to cull his case.
Presenting the case to a new grand jury has other upsides for Smith as well – undercutting a chance for Trump’s team to argue jurors failed to consider the case in the aftermath of the immunity decision.
Choices for Chutkan
The new indictment puts a series of big decisions in front of Chutkan, who officially resumed overseeing the case earlier this month following the Supreme Court’s immunity ruling.
It’s now up to the federal judge to decide whether Smith’s allegations against Trump stand up to the justices’ new tests — and her findings could be ripe for appeals back up to the high court.
Smith’s riskiest gambit is allowing Trump’s pressure campaign against then-Vice President Pence to remain in the indictment.
The Supreme Court plainly ruled that Trump has presumptive immunity for urging Pence to take some acts tied to the vice president’s official role overseeing the presidential election certification, but left open the question of whether Trump’s specific actions as alleged are protected.
In the new indictment, Smith notes that Trump had no official responsibilities tied to the election’s certification but contends he did have a “personal interest” in being named winner as the Republican candidate. The special counsel goes on to reframe the allegations against Trump in the context of his efforts to “maintain power.”
Smith newly says Trump wanted Pence to “assist in the plan” to certify alternate slates of electors and emphasizes Pence’s role as president of the Senate in several places.
The indictment also removes reference to “several private phone calls” between Trump and Pence where Trump directly applied pressure but retains a Christmas Day call where Trump makes similar requests.
Chutkan has signaled her readiness to take on those challenges, initially scheduling the hearing on next steps within hours of the case returning to her court.
