The justice department filed a new indictment against Donald Trump on Tuesday over his efforts to overturn the 2020 election. The maneuver does not substantially change the criminal case against him but protects it in the wake of a July supreme court decision ruling saying that Trump and other presidents have immunity for official acts, but not unofficial ones.
“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,” lawyers for Jack Smith, the special counsel handling the case, said in a filing that accompanied what is known as a superseding indictment.
“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 document retains the same four criminal charges against Trump that were originally filed last summer. But portions of the new indictment are rewritten to emphasize that Trump was not acting in his official capacity during his efforts to try to overturn the election.
The new document, for example, removes mention of Jeffrey Clark, a former justice department official who aided Trump’s attempt to try to overturn the election. Clark was the only government official who was listed as an unnamed co-conspirator in the original indictment.
“Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” the supreme court wrote in its ruling in July.
The supreme court also suggested that a president could be criminally immune in connection to acts between him and the vice-president. The superseding indictment reframes Trump’s interactions with Mike Pence, emphasizing that he was Trump’s running mate.
At other points in the document, prosecutors emphasize that Trump was acting outside the scope of his official duties.
“The defendant had no official responsibilities related to any state’s certification of the election results,” the document says.
Prosecutors also highlighted that Trump used his Twitter/X account both for official and personal acts. They noted that the rally he attended on the Ellipse, near the White House, on 6 January 2021 was a “campaign speech”.
Even if the case is still unlikely to go to trial before the 2024 election in November, and even if the Trump lawyers file motions seeking to excise more parts of the indictment, the decision to pursue a superseding indictment may have been to avoid more delay.
Trump has been enormously successful in delaying his criminal cases, which came as part of a broader strategy to push his legal troubles past November, in the hopes that he wins and can appoint a loyalist as the attorney general who would then drop the cases entirely.
In July, the supreme court’s conservative majority ruled that former presidents are immune from criminal prosecution for official actions that extended to the “outer perimeter” of their office, most notably any interactions with the justice department and executive branch officials.
The framework of criminal accountability for presidents, as laid out by the ruling, has three categories: core presidential functions that carry absolute immunity, official acts of the presidency that carry presumptive immunity, and unofficial acts that carry no immunity.
The court also ruled that the special counsel, Jack Smith, could not introduce as evidence at trial any acts deemed to be official, even as contextual information for jurors to show Trump’s intent.