Special counsel Jack Smith’s signature is seen on the revised indictment against Donald Trump in the 2020 election meddling case after US prosecutors secured the indictment, in Washington, US, on August 27, 2024. Photo: US Department of Justice, via Reuters
Special counsel Jack Smith on Tuesday (August 27, 2024) filed a new indictment against Donald Trump over his efforts to overturn the 2020 presidential election, containing the same criminal charges but with the charges against him reduced following a Supreme Court opinion that granted broad immunity to former presidents.
The new indictment drops the portion of that indictment that accused Mr. Trump of trying to use the Justice Department’s law enforcement powers to overturn his election loss, an area of conduct for which the Supreme Court last month by a 6-3 majority said Mr. Trump was entirely immune from prosecution.
The criminal case is the first attempt by prosecutors to comply with the Supreme Court’s opinion, which is likely to result in significant revisions to the charges against Mr. Trump over his efforts to prevent a peaceful transfer of power. It was filed three days before a deadline for prosecutors and defense lawyers to tell the judge in the case how they want to proceed in light of the opinion, which said former presidents are potentially immune from prosecution for official White House acts.
The two sides will return to court next week for a status hearing, the first such appearance in months since the case has been effectively on hold since last December as Mr Trump’s immunity appeal works its way through the justice system.
In a statement on his Truth social platform, Mr Trump called the new indictment an “act of desperation” and “an attempt to revive a ‘dead’ witch hunt”. He said the new case “has all the problems of the old indictment, and should be dismissed immediately.”
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. It said in a statement that the indictment “reflects the government’s efforts to honor and implement the Supreme Court’s decisions and remand instructions.”
The central amendment to the updated criminal case concerns Mr. Trump’s dealings with the Justice Department.
The original indictment included allegations that Mr. Trump tried to involve the department in a failed effort to repair his election debacle, including by conducting bogus investigations and falsely telling states that significant fraud had been detected.
It detailed how Jeffrey Clark, a top Trump Justice Department official, wanted to send a letter to elected officials in some states falsely claiming the department had “identified significant concerns that could impact the outcome of the election” and asked top department officials to sign it, but they refused.
Mr. Clarke’s support for Mr. Trump’s election fraud claims led Mr. Trump to openly consider nominating him as acting attorney general in place of Jeffrey Rosen, who led the department in the final weeks of the Trump administration. According to the original indictment, Mr. Trump eventually accepted that idea “when he was told it would lead to mass resignations at the Justice Department.” Mr. Rosen remained as acting attorney general until the end of Mr. Trump’s term.
The new case no longer refers to Mr. Clark as a co-conspirator. Mr. Trump’s co-conspirators were not named in any of the indictments but have been identified through public records and other means.
In its opinion, the Supreme Court held that the president’s dealings with the Justice Department were official acts for which he was entitled to immunity, effectively severing those charges from the case.
Chief Justice John Roberts wrote for the court, “As we have made clear, the President’s power to remove ‘executive officers of the United States appointed by him’ cannot be regulated by Congress or reviewed by the courts.”
The judges returned the other key allegations in the case to U.S. District Judge Tanya Chutkan, the trial judge presiding over the case, to determine what is — and is not — an official act protected from prosecution.
The new indictment still includes one of the more shocking allegations made by Mr. Smith — that Mr. Trump participated in a scheme devised by associates to produce lists of fraudulent electors in battleground states won by Democrat Joe Biden who falsely certified that Mr. Trump had won those states.
It also alleges that Mr Trump tried to pressure Vice President Mike Pence to reject legitimate electoral votes, and that Mr Trump and his allies exploited the chaos at the Capitol on January 6 in an attempt to further delay the certification of Mr Biden’s victory.
Mr Roberts wrote in his majority opinion that the conversation between Mr Trump and Mr Pence amounted to official conduct, for which “Trump is at least presumed to be immune from prosecution”.
The question, Mr. Roberts wrote, is whether the government can rebut “that presumption of immunity.”
Supreme Court Justice Ketanji Brown Jackson dissented from the decision. In an excerpt from an interview with CBS News’ “Sunday Morning” that aired Tuesday, she said, “I was concerned about a system that appears to give an individual immunity under certain circumstances when we have a criminal justice system that generally treats everyone the same.”