Jack Smith regroups

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 Hill

I was wondering how that would work. A whole new GJ.  I wonder when they convened. *

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.

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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.

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

Hmmm?

[T]he 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.

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

But it includes new efforts to indicate Trump’s false statements about the election were spread in a campaign capacity, not through his role as chief executive.

I guess I assumed that was the case in the original indictment.

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.”

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[I]t 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.

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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.

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Smith removed references to certain conversations Trump had with the House minority leader and officials in Trump’s White House and Justice Department.

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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.

    source

UPDATE 08/28/2024:

The same four charges are still in the indictment, and Donald Trump continues to be the only defendant.

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There is no more reference to the 45th President of the United States. The indictment is now about Donald Trump, a candidate for president in 2020 who lost. In other words, following the Supreme Court’s decision on presidential immunity, the prosecution is signaling that it has abandoned claims about official presidential conduct and is only moving forward with claims about candidate Trump.

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The Special Counsel has removed allegations about Trump’s efforts to use DOJ in furtherance of the crimes he’s charged with. The Supreme Court ruled that was official conduct, and it’s now out. But the allegations about the pressure campaign to keep Vice President Mike Pence from certifying the election remain in, as do some allegations about interactions with state officials, like the call Trump made to Georgia Secretary of State Brad Raffensperger begging him to find him the votes he needed to win.

Trump’s lawyers will want to remove much more from the indictment. That’s the fight that begins when Judge Chutkan holds a status conference on Friday.

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Trump will need to be arraigned on the new indictment before anything further can happen in the case, but prosecutors have already said they will waive Trump’s personal appearance in court for that proceeding.

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Unless—and this is highly unlikely—both Trump and the government agree with Chutkan’s decisions, the case is almost certain to go on appeal one more time, as we’ve previously discussed. The Supreme Court will have the final say over what conduct can remain in the indictment and what is protected by presidential immunity.

  Joyce Vance

And I think we can count on them to find that most of the conduct is protected.

The indictment

*UPDATE 08/28/2024: