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The federal government’s two pending cases against Donald Trump appeared at risk following the Supreme Court’s monumental decision on presidential immunity, which barred official acts as president from prosecution. Special counsel Jack Smith is now attempting to salvage everything he can. First, he appealed the dismissal of the Florida classified-documents case after a Trump-friendly judge dismissed it. Then, on Tuesday, he filed a revised indictment in Trump’s election-subversion case, which attempts to address the Court’s ruling. Neither case will go to trial before the election, and their chances of surviving at all depend almost entirely on whether Donald Trump wins or loses in November, since he could simply fire Smith if he returns to the presidency. But Smith is using all legal avenues at his disposal to get the trials moving. Here’s what we know about how Smith is adapting to this post–Supreme Court decision reality in the election-subversion case.
In the initial 45-page indictment filed by Smith last year, the federal government laid out a winding scheme alleging that Trump and his allies “pursued unlawful means of discounting legitimate votes and subverting election results” following the 2020 presidential election.
Prosecutors claim that Trump and his several unindicted co-conspirators pushed false election-fraud claims, organized alternate slates of electors in key battleground states, tried to use the Justice Department to conduct fraudulent investigations into election crimes, and attempted to coerce Vice-President Mike Pence into subverting his duties in certifying the election results in Congress. The indictment also blames the president for the January 6 attack on the U.S. Capitol carried out by Trump supporters.
Trump was hit with four charges: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.
On Tuesday, the federal government officially filed a 36-page superseding indictment in the election-subversion case, presided over by Federal Judge Tanya Chutkan. Smith and his team wrote that the revised indictment “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions” in their immunity decision issued in June. They said the indictment was issued by a new grand jury that hadn’t heard evidence in the matter before.
Though those four counts against Trump remain, there are a few key differences between the initial indictment and this revised one. The new indictment notably removes “Co-Conspirator 4,” described as a Justice Department official who used the agency to “open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.” That unnamed figure is largely understood to be Jeffrey Clark, who once served as U.S. assistant attorney general for the Environment and Natural Resources Division under Trump. Clark was likely removed from the list in order to stay in line with the Supreme Court ruling. Unlike the other co-conspirators who were lawyers and a political consultant working for Trump in their private capacity, Clark served an official role in the Trump administration. Clark supported Trump in his attempts to overturn the election results, including circulating a draft letter falsely claiming the Justice Department was investigating voting irregularities in battleground states. Clark was nearly appointed as acting attorney general, but Trump backed down after several members of his administration threatened to resign en masse if Clark was elevated to the role.
The indictment also removes all allegations related to attempts to use the Justice Department to perpetuate the election-fraud scheme, likely an effort to not run afoul of the Supreme Court’s determination on official acts. Additionally, the filing takes care to note when Trump was acting in unofficial capacity or when a particular aide assisted in private affairs, another attempt to shore up the indictment against any potential challenges.
The revised indictment was filed ahead of a Friday deadline set by Judge Chutkan for both sides to issue a joint proposal on how to address pretrial proceedings. Smith’s team indicated in its filing that it will confer with Trump’s defense team to complete the report. A status conference is currently scheduled for September 5. There had been speculation that Smith could attempt to hold what’s been called a “mini-trial,” an evidentiary hearing where he could lay out the evidence his team has compiled for the public prior to the election. But reporting suggests that Smith is expected to stay the course and won’t take such an action.
Unsurprisingly, Trump railed against the new indictment in a lengthy series of posts on Truth Social, challenging Smith’s authority and denouncing the case as politically motivated. “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.
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