A Superseding Indictment in the Election Interference Case

In a Tuesday afternoon surprise, Jack Smith went to a grand jury in the District of Columbia to obtain a superseding indictment in the election interference case. Superseding an indictment means amending it. Often that’s done to add new charges or defendants, but that is not the case here. The same four charges are still in the indictment, and Donald Trump continues to be the only defendant.

Even though I am still in Scotland—it’s almost midnight here and we’ve had a full day of hiking across beautiful countryside, I wanted to make sure we flagged some of the most important points about this move today. Read the full indictment here: https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.226.0_35.pdf

What’s new? It will take a while to do a precise line-by-line comparison of the new and old indictments, but a big difference kicks in right at the top of the new indictment.

There is no more reference to the 45th President of the United States. The indictment is now about Donald Trump, a candidate for president in 2020 who lost. In other words, following the Supreme Court’s decision on presidential immunity, the prosecution is signaling that it has abandoned claims about official presidential conduct and is only moving forward with claims about candidate Trump. The government is saying it has limited the superseding indictment to unofficial, private conduct by Trump that the Supreme Court has said is fair game for prosecutors to pursue. The message is that the prosecution has reworked the indictment to comply with the Supreme Court’s decision about presidential immunity, removed allegations about President Trump, and made sure only allegations about candidate Trump remain.

The Special Counsel has removed allegations about Trump’s efforts to use DOJ in furtherance of the crimes he’s charged with. The Supreme Court ruled that was official conduct, and it’s now out. But the allegations about the pressure campaign to keep Vice President Mike Pence from certifying the election remain in, as do some allegations about interactions with state officials, like the call Trump made to Georgia Secretary of State Brad Raffensperger begging him to find him the votes he needed to win.

In other words, this is just Special Counsel Jack Smith’s opener. Trump’s lawyers will want to remove much more from the indictment. That’s the fight that begins when Judge Chutkan holds a status conference on Friday: which allegations and evidence can Smith still use in this case after the Supreme Court’s immunity decision? He has now voluntarily removed some material. Judge Chutkan will have to decide what, if anything more, she will remove based on the arguments Trump’s lawyers will make.

The case is not back on track for a quick trial. Unless—and this is highly unlikely—both Trump and the government agree with Chutkan’s decisions, the case is almost certain to go on appeal one more time, as we’ve previously discussed. The Supreme Court will have the final say over what conduct can remain in the indictment and what is protected by presidential immunity.

After the superseding indictment was released, a spokesperson for the Special Counsel issued a statement that provided only minimal information:

• They confirmed that Trump is only charged “with the same criminal offenses that were charged in the original indictment.”

• The superseding indictment was “presented to a new grand jury that had not previously heard evidence in this case.”

• The government’s decision to supersede “reflects” its “efforts to respect and implement the Supreme Court’s holdings and remand instructions.”

Trump will need to be arraigned on the new indictment before anything further can happen in the case, but prosecutors have already said they will waive Trump’s personal appearance in court for that proceeding.

Thanks for being with me here at Civil Discourse, where we try to understand new developments when they crop up, even from across the pond (I’m still on vacation in Scotland). I appreciate those of you whose paid subscriptions make it possible for me to devote more time and resources to this work, and appreciate all of you who read the newsletter!

We’re in this together,

Joyce