Then President Donald Trump talks to White House chief of staff Mark Meadows outside the White House in 2020 (AP Photo/Manuel Balce Ceneta, File).
The special counsel’s office took pains to sidestep the U.S. Supreme Court’s attempted evisceration of their Jan. 6 prosecution by filing a superseding indictment on Tuesday that intends to resuscitate, with due haste, their case against former president Donald Trump.
Jack Smith, however, also took the opportunity to put some of the 45th president’s alleged co-conspirators on notice.
While the new filing eschews several earlier references to explicitly-verboten issues – topics and discussions which the nation’s high court ruled are subject to the novel and broad-reaching legal concept of post-presidential immunity for criminal acts created in their July 1, landmark opinion – there are also some key additions.
In an early section of the superseding indictment, Smith looks to stake out territory that both precludes the use of “official acts” claims by the defendant, and which also serves as a warning to alleged co-conspirators that the Supreme Court’s ruling was not for them.
The extent to which the special counsel’s arguments here actually inure to the government’s favor, of course, will be up to U.S. District Judge Tanya Chutkan to determine – not to mention the likely inevitable second and third looks by reviewing courts up the line.
“These co-conspirators included the following individuals, none of whom were government officials during the conspiracies and all of whom were acting in a private capacity,” the new indictment reads.
The indictment goes on to list four “private” attorneys and one “private political consultant,” while notably excising Justice Department officials from the alleged conspiracy entirely.
Indeed, elision is the name of the game for Smith and his office insofar as references to Trump’s discussions and interactions with members of the “Justice Department” are concerned writ large.
Such deletions are seemingly expressly crafted to jibe with a section from the Supreme Court’s immunity ruling that says “Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”
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 reads. “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.”
The superseding indictment also references Trump’s then-chief of staff, Mark Meadows, in the following highly-revised (added to) 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 and actions taken.
Despite the handful of relevant additions to the government’s narrative, the new grand jury’s post-immunity indictment contains nine pages less than the first indictment filed on Aug. 1, 2023.
Notably, the new indictment renders almost all of pages 9-11, as well as most of page 23, of the original indictment moot, seemingly in accord with the Supreme Court’s ruling.
Same as it ever was, Trump stands accused of one count each of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against the right to vote and to have votes counted.
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