As part of the case from January 6, special counsel Jack Smith filed a new charge against former President Donald Trump on Tuesday.
The new filing keeps all of Trump’s charges from the first indictment and tries to follow the U.S. Supreme Court’s decision on presidential protection in the middle of summer.
The 36-page superseding indictment was presented by a brand-new grand jury that was appointed to hear the case after the Supreme Court’s ruling in Trump v. United States.
Smith says in a separate notice that the new indictment shows his “efforts to respect and implement” the “holdings and remand instructions” in the Supreme Court’s important decision on immunity.
In the case of Trump v. United States, some parts of the original charge seemed to violate the court-made idea of immunity for official acts that fall under a president’s “core constitutional powers” and “remaining official actions.”
The view also said that acts done outside of work are not immune.
There are some claims that are easy to put into groups based on the President’s official relationship with the office held by that person, such as those about Trump’s conversations with the Acting Attorney General, according to Chief Justice John Roberts’ opinion.
There are more difficult questions about other claims, like those about Trump’s interactions with the Vice President, state leaders, and some private individuals, as well as his public statements.
We list a few things that should be taken into account when putting these accusations into groups and figuring out if the people involved are immune, but in the end, it is best for the lower courts to do that research first.
There will definitely be a lot of disagreement about what in the indictment counts as a core official act, an otherwise official act, or a nonofficial act, as well as what kind of protection is enough to protect the president in each case.
With his attack late Tuesday night, the special counsel hopes to cut short a lot of the back-and-forth that is likely to happen since the case was sent back to U.S. District Court Judge Tanya Chutkan.
There are no longer any references in the charge to Trump’s talks with “senior leaders of the Justice Department.”
That rescindal seems to have been carefully thought out to match the following part of the Supreme Court’s protection ruling:
Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” and the Constitution vests the entirety of the executive power in the President. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.”
The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.
The majority decision also said that Trump was “at least presumptively” immune from charges related to his attempts to get Vice President Mike Pence to not certify some Electoral College votes.
Smith, on the other hand, seems to be taking a chance on presumptive immunity, which is a limited immunity that another party in a legal case or dispute could breach.
In other words, the new charge does not get rid of the claims about the Pence pressure plan.
Smith even says that Trump used Twitter to “put pressure on the Vice President to abuse his official role in the certification hearing.” The new indictment also says that Trump and his “co-conspirators” tried to get the Vice President to help them change the results of the 2020 election.
It also says that Trump “lied to” his followers and told them to “put pressure on the Vice President to do the fraudulent things he had previously refused to do.”
In a way that seems to be in line with the Supreme Court’s decision, the new indictment throws out most of pages 9–11 and 23 of the original charge.
The new grand jury’s post-immunity charge is nine pages shorter than the first one, which was filed on August 1, 2023.
The charges against Trump are the same as they were before: plot to defraud the United States, obstruction of an official proceeding, conspiracy to obstruct an official proceeding, and obstruction of an official proceeding. Trump is also accused of conspiracy against the right to vote and its counting.