Left: Special counsel Jack Smith turns from the podium after speaking about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin). Right: Republican presidential candidate, former President Donald Trump stands on stage at the Libertarian National Convention at the Washington Hilton in Washington, Saturday, May 25, 2024 (AP Photo/Jose Luis Magana).
The superseding indictment against former President Donald Trump in the Jan. 6 case plots significantly altered terrain for the government — at least in terms of facts and presentation.
While the core of the legal arguments against the 45th president remains the same, special counsel Jack Smith is necessarily more constrained in how he connects the dots in the wake of the U.S. Supreme Court’s landmark ruling on presidential immunity.
Now, the markedly leaner document still alleges a vast array of conspiracies — against the United States, to obstruct an official proceeding, and against the right to vote and to have votes counted — but in nine pages less than the first indictment filed on Aug. 1, 2023.
As Law&Crime previously reported, the brunt of the rescissions focused on references to the U.S. Department of Justice and concomitant attorneys who worked under the auspices of the agency. Such “discussions with Justice Department officials” were ruled out-of-bounds for prosecutors in the high court’s majority opinion.
On Monday, Just Security published a redline comparison of the two indictments — along with a lengthy analysis suggesting how U.S. District Judge Tanya Chutkan might move the case forward.
The redline version contains a line-by-line visualization of the changes reflected in the new court document — changes that have already prompted Trump’s attorneys to argue for delaying some pretrial proceedings into the spring and fall of 2025 “if necessary.”
And, while elision is the name of the game for Smith and his office, there are several outright changes in terms of verbiage, as opposed to merely deleting walls of text, and a few key additions as well.
The heart of the new version is attuned to the idea that what Trump allegedly did in the aftermath of the November 2020 election — culminating on Jan. 6, 2021 — was done as a private citizen. Linguistic choices by the special counsel’s office showcase this approach.
Page one of Trump’s superseding indictment in the Jan. 6 case (Just Security).
For example, rather than referring to Trump as the “forty fifth President,” the new indictment introduces the defendant using the still-accurate phrase “a candidate for President.”
While acknowledging Trump was “the incumbent President” at the time of the various election subversion campaigns, the words in the new indictment, on the whole, eschews referring to the executive branch in favor of a focus on the private entities involved.
As such, whereas the old version alleges Trump “repeated and widely disseminated” false electoral claims, the new version alleges Trump “used his Campaign to repeat and widely disseminate them.”
And, Smith also takes the opportunity to use several additional, highly-descriptive pieces of language to try and hit the point home about Trump’s “prolific” stolen election lies. A newly-added sentence reads: “These false claims were unsupported, objectively unreasonable, and ever-changing, and the Defendant and co-conspirators repeated them even after they were publicly disproven.”
The deletions continue in Trump’s superseding indictment in the Jan. 6 case (Just Security).
Of course, entire walls of text are, in fact, dismantled and rubbished — but there are wholesale additions to the new indictment, too.
Notably, the new indictment renders almost all of pages 9-11, 27-31, as well as most of page 23, of the original indictment moot, seemingly in accord with the Supreme Court’s immunity ruling.
Meanwhile, all of the new indictment’s page 7 is brand new material:
13. The Defendant was on notice that his claims were untrue. He was told so by those most invested in his re-election, including his own running mate and his campaign staff. Federal and state courts rejected every outcome-determinative post-election lawsuit filed by the Defendant, co-conspirators, and their allies. State officials-including election directors and Secretaries of State in his own political party-issued public statements dispelling the Defendant’s and co-conspirators’ myth of widespread election fraud. And on November 12, the National Association of Secretaries of State, the National Association of State Election Directors, and other organizations issued a statement on behalf of several coordinated entities, declaring the 2020 election to be “the most secure in American history” and that there was “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”
14. The Defendant continued to make false claims nonetheless, with deliberate disregard for the truth, including through his Twitter account. Throughout the conspiracies, although the Defendant sometimes used his Twitter account to communicate with the public, as President, about official actions and policies, he also regularly used it for personal purposes-including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.
And, while former DOJ officials may no longer have Smith’s would-be subpoenas on their mind the prosecutor drops and dangles a few more Damoclean hints to others within Trump’s orbit.
“The Defendant continued his lies through the day of the certification proceeding on January 6,” the new indictment goes on in another notable addition. “That morning, the Defendant gave a Campaign speech at a privately-funded, privately-organized political rally held on the Ellipse in Washington, D.C. During the speech, the Defendant used many of the same unsupported, objectively unreasonable, and publicly disproven lies to exhort the gathered crowd to march to the Capitol.”
A page of new additions to Trump’s superseding indictment in the Jan. 6 case (Just Security).
The superseding indictment also references Trump’s then-chief of staff, Mark Meadows, in a highly-revised section about election subversion efforts in Georgia:
On January 2, four days before Congress’s certification proceeding, the Defendant, his Chief of Staff — who sometimes handled private and others called Campaign-related logistics for the Defendant — and private attorneys involved in the lawsuit against Georgia’s Secretary of State called the Secretary of State.
Again, the changes to the indictment veer toward referencing the allegedly “private” nature of services provided, actions taken, and the organizations and people allegedly responsible.
Take a look at Just Security’s full redline comparison here.
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