Superseding Indictment

Special Counsel Jack Smith showed he is nowhere near done with Donald Trump.

Photo: Drew Angerer/Getty Images

There’s a superseding indictment in the January 6 case, and Donald Trump blew a few gaskets when he heard about it.

On Tuesday, Special Counsel Jack Smith showed he’s not going anywhere. He dropped a 36-page, slimmed down version of his indictment of Trump in the January 6 case in D.C.

Notably, Trump is still charged with the same four criminal counts:

• Conspiracy to defraud the United States (18 U.S.C. § 371);

• Conspiracy to obstruct an official proceeding (18 U.S.C. §1512(k));

• Obstruction of, and attempted obstruction of, an official proceeding (18 U.S.C. §1512(c)(2)); and

• Conspiracy against rights (18 U.S.C. §241).

The new indictment focuses on candidate Trump and on those actions that lay outside his official presidential capacity. Such actions were, at least in theory, not covered by the broad presidential immunity that the Supreme Court recently announced he is entitled to as an ex-president.

In today’s piece, I’ll discuss why Smith filed the superseding indictment and how Trump’s unsurprising and colorful criticisms of it are baseless. Then I’ll walk through what’s in and what’s out of the indictment with a brief primer explaining why, including a discussion of the critical Mike Pence question. Finally, I’ll touch on what this could mean for the months ahead and for the case itself going forward.

Superseding ‘splainer

So what is a superseding indictment? If you were to believe Donald Trump, which you should never, ever do, it’s some kind of illegal maneuver to interfere with the election. Following the news of the superseding indictment, Trump posted, “For them to do this immediately after our Supreme Court Victory on Immunity and more, is shocking.”

Shocking perhaps to him, but not to legal observers. As law professor Lee Kovarsky noted in response, this is hardly some fancy or evil maneuver that emerged only to hurt Trump:

Hot tip - a superseding indictment is like an amended complaint in a civil case. When you delete allegations from the existing complaint it’s not some exotic sketchy thing. Just stop, it’s fine to say that this isn’t your area.

Indeed, having handled dozens of civil cases myself, when a court rules, after a demurrer or motion to dismiss, that some of your claims don’t pass legal muster, the straightforward next step is to file an amended complaint and proceed from there.

In criminal court, prosecutors can seek a new grand jury indictment that supersedes the old one. And that’s what happened in this case.

But consider that for a moment. In the middle of this case, Jack Smith quietly empaneled a new grand jury and set out the allegations against Trump in the superseding indictment. The grand jury still returned a true bill of indictment, making them the fifth so far to indict Trump.

As for Trump’s claim that “you’re not even allowed to bring cases right before an election,” this ignores the fact that 1) these are the same charges as before, so there are no surprises; 2) this is a DOJ internal policy, not some hard and fast rule; 3) it’s still more than 60 days out from Election Day; and 4) hello, James Comey?

Finally, and this needs to be said in response to Trump’s rant, even though it’s not related to this discussion: The idea that the “2020 Presidential election was MANIPULATED and RIGGED by the DoJ” by pressuring Mark Zuckerberg not to publish stories on Hunter Biden’s laptop ignores whose DoJ it actually was in 2020.

In my best Kamala Harris voice: “I’ll ask it again. Mr. Trump, can you tell me who was President in 2020?” 

The focus on candidate Trump

Legal reporter Katie Phang of MSNBC did an excellent job summarizing the tonal changes that Smith made in the new indictment. She notes,

Smith makes it clear that Trump's co-conspirators were all acting in a “private capacity” or they were “not government officials during the conspiracies.”

This is important because if they were acting in their private capacity or weren’t government officials during the relevant times, then there is no immunity.

Trump’s co-conspirators were all “private” individuals: attorneys or a political consultant who assisted Trump in perpetrating his election interference and fraud.

When it comes to Trump being on notice that his claims of election fraud were false, the [superseding indictment] alleges that Trump was told by “those most invested in his re-election, including his own running mate and his campaign staff.”

So Trump as the CANDIDATE not as the president is being put on notice that there was no election fraud.

These are the new battle lines Smith has drawn, and as I’ll discuss below, Judge Chutkan is going to have to make some critical determinations over whether the new allegations fall outside of Trump’s immunity.

What did Smith take out of the indictment?

The best way to understand what Smith did is to go back to the Supreme Court’s recent ruling on immunity. As legal analyst Chris Geidner wrote in his newsletter, the superseding indictment was Smith’s direct response to SCOTUS’s immunity decision. That opinion, horrific as it was, held that former presidents enjoy

absolute immunity for acts within what Chief Justice John Roberts described for the court as a president’s “core constitutional powers.” 

Geidner notes,

The court also held that a former president also maintains at least a “presumption” of immunity for any official actions within the “outer perimeter” of that president’s duties.

So what is a “core constitutional power” that is absolutely immune, and what is in the “outer perimeter” of his duties that is presumptively immune? The Supreme Court didn’t give much actual guidance, but it did actually single out, as an example of core constitutional power, the president’s interactions with his own Justice Department. 

With a sigh, then, Smith removed from the indictment all reference to what officials in the Justice Department did or said in connection with the attempted coup. That takes the federal heat off of bad actors like Georgia RICO defendant Jeffrey Clark, at least for now. He is no longer listed as one of the federal co-conspirators. 

If you recall, Clark was the one who drafted a letter to Georgia officials falsely claiming that the Justice Department was investigating election fraud and suggesting that they should reconvene the legislature to undo the results of the election.

That draft letter was never sent, and Clark was never elevated by Trump to be Attorney General, all because then Acting Attorney General Jeffrey Rosen threatened to resign along with many other top officials at the DoJ. Trump backed down in the face of this unified resistance. 

Gone, too, are allegations about what Trump’s White House lawyers and advisors did or said. Smith is conceding that these communications and events lie within the president’s “core powers,” or if not, then within the “outer perimeters” of his duties. 

This includes evidence of when Trump’s lawyers and other federal officials told him there was no evidence of fraud that would change the outcome of the 2020 election. Also excised from the indictment was what Trump himself, as president, said in a public press conference about false claims of an election “dump” in Detroit.

With all that gone, is anything good still in?

Before we despair, it’s important to take inventory of what is still in the case and to remember that these alone were enough for a new grand jury to indict Trump on the same four criminal counts.

Importantly, all of the allegations around the fake elector scheme are still in the case. Trump will have a hard time arguing that his activities in connection with putting together bogus slates of electors was in some way part of his “official duties” as president. After all, the Constitution grants to the states the authority over elections, and the president simply has no official role to play. Moreover, it was Trump’s private attorneys and campaign officials, such as Kenneth “The Cheese” Chesebro and Rudy “The Rivulet” Giuliani who were orchestrating the fake elector scheme and spreading election misinformation.

While the things that federal officials told Trump about the election, i.e., that there was no evidence of widespread fraud, are no longer fair game, Smith has now replaced those allegations with things Trump’s own campaign folks told him. This is in keeping with the general theme of the new indictment: Candidate Trump is not entitled to immunity, even if President Trump is.

Trump’s infamous calls to Georgia officials, including his recorded call to Georgia Secretary of State Brad Raffensperger to “find” 11,780 votes and urge them to undo the results in that state, are still in. That is also quite defensible: What business does the President have making self-serving calls on behalf of his campaign and issuing veiled threats to state officials? 

Finally, Trump’s pressure campaign upon former VP Mike Pence to violate his constitutional duties during the electoral count made the cut. This is perhaps the most contentious area of evidence, and one that will be subject to a hearing and undoubtedly appealed. 

To make his case stronger, Smith refers to Pence as the “president of the Senate” for purposes of the Electoral Count, which is accurate. Pence was there in Congress that day in his capacity as an officer of Congress. Moreover, Pence was also a political candidate at the time. Trump wasn’t talking to Pence and urging him to violate his duties as a member of the Executive Branch. Rather, Smith will argue, he was trying to enlist Pence in his dirty work, focusing on Pence’s legislative role and his sense of loyalty to the campaign.

On this question, there will be what’s called a “rebuttable presumption” of immunity. That’s a fancy way of saying that we should begin from the assumption that Pence is off limits, but if Smith can show that Trump’s interactions with Pence weren’t even within the “outer perimeter” of Trump’s duties, then he can overcome that assumption and the evidence can come in.

So what happens now? 

Somewhat ironically, this pared down indictment will streamline the case considerably and leave fewer issues to appeal should the jury find him guilty, yet carry the same legal consequences for Trump. But there’s enough gray area here that Chutkan will have to ask for motions and briefing and then hold a hearing, possibly even an extensive evidentiary one. 

That’s because whether a scheme like the fake elector plan, the calls to Georgia, or Trump’s pressure campaign on Pence were part of the Trump campaign or within the duties of the Trump White House are questions of fact that the parties will likely dispute. At some point, Judge Chutkan will have to weigh the evidence around these questions and make factual findings. 

Such a hearing could still happen in October, but Trump no doubt will fight that timeline, because the last thing his campaign wants is to have January 6 at the top of the news and on voters’ minds again right before the election.

Ultimately, Trump and/or Smith will appeal whatever ruling Chutkan makes. As before, the trial won’t move forward until the question of what can be presented in it is fully resolved. That means at least one more trip up and down the appellate courts is in the cards, probably with at least another six month delay if not more.

Before we set our hair on fire over this, remember what it means for Donald Trump. If he loses the election—a result far more likely than it was just over a month ago—he will face a host of federal and state criminal cases that will cost him tens if not hundreds of millions to defend and will still almost certainly result in even more convictions beyond the 34 he already has. 

Moreover, the idea of jailing a loser ex-president is far different than jailing the current presidential candidate of a major party. It is not a bright and happy future for him as a defeated candidate and convicted felon, and Trump knows it.

Perhaps Trump thought all this would just “go away” after the shocking immunity ruling from his stacked Supreme Court. On the contrary, Smith has now made it clear that he will continue to relentlessly pursue Trump, using all the permissible avenues he can, to hold him to account.