Special counsel Jack Smith filed an updated indictment against former President Donald Trump in Washington on Aug. 27 following the Supreme Court’s ruling that he enjoyed some presidential immunity from criminal prosecution.
“Today, a federal grand jury in the District of Columbia returned a superseding indictment, charging the defendant with the same criminal offenses that were charged in the original indictment,” an Aug. 27 filing from the special counsel’s office reads.
“The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States.”
The new indictment narrows the allegations against the former president by removing allegations involving his interactions with the Justice Department.
It no longer lists as a co-conspirator former DOJ official Jeffrey Clark. Trump’s co-conspirators were not named in either indictment, but they have been identified through public records and other means.
Smith’s superseding indictment still contains four charges against the former president, including those from the financial reform law the Supreme Court addressed in Fischer v. United States.
Presidential Immunity
In Trump v. United States, a majority of the Supreme Court held that presidents enjoyed several tiers of immunity from prosecution: absolute immunity for acts that fall within their “conclusive and preclusive constitutional authority,” a presumption of immunity for their official acts, and no immunity for unofficial acts.
Chief Justice John Roberts’s majority opinion grouped the allegations into three categories: those surrounding Trump’s work with the Department of Justice (DOJ); those involving his communication with state electors and his communications on Jan. 6, 2021; and his urging Vice President Mike Pence to not certify the election results in the Senate.
Trump received absolute immunity from prosecution of the first category. For the second, the Court remanded the issue to the district court to determine whether his actions were official. His communications with Pence are “presumptively immune,” but the DOJ can rebut that presumption in court.
It’s unclear how much of the superseding indictment will survive. D.C. Judge Tanya Chutkan will likely receive briefings from both the special counsel and former Trump’s legal team advocating their view of which charges should be dropped or maintained in the indictment.
The Supreme Court has left her with the task of parsing former Trump’s actions and determining which were official and which were unofficial.
Judge Chutkan has scheduled a status conference for Sept. 5.
Experts have told The Epoch Times that the prosecution will extend past the election. If Trump wins the presidency, he’s expected to withdraw the case. Even if he loses, however, the case could face additional appeal and potentially make its way back to the Supreme Court.
Last year, Trump’s legal team filed a motion to dismiss on statutory grounds and alleging that the initial indictment failed to “state an offense.” More specifically, it alleged the indictment failed to allege the type of deceit or trickery needed for the first count, which focused in both indictments on an alleged conspiracy to defraud the United States.
On Aug. 3, Judge Chutkan denied the motion without prejudice and stated that Trump “may file a renewed motion once all issues of immunity have been resolved.”
The superseding indictment came just a day after Smith asked the U.S. Court of Appeals for the 11th Circuit to affirm the legitimacy of his office. Florida Judge Aileen Cannon had dismissed his classified documents case against Trump on the grounds that Smith’s appointment violated the constitution.
That case too could reach the Supreme Court where at least one justice -- Justice Clarence Thomas -- expressed concern about Smith’s office. That came in his concurrence for Trump v. United States. None of the other justices joined that opinion, but Justice Brett Kavanaugh expressed concern about the special counsel’s power during oral argument on April 25.
Cannon limited her decision to the documents case, although it raised questions about the legitimacy of his other prosecutions.
