Special Counsel Jack Smith was corrected yesterday. Replace the indictment A revised indictment in the federal criminal case against Donald Trump seeking to overturn the results of the 2020 presidential election seeks to address the Supreme Court’s erroneous ruling. Trump vs. the United Statesruled that the President has broad immunity from criminal prosecution for “official duties,” but it was not at all clear how far that immunity extends. On an email list on which we both belong, Princeton University legal scholar Kim Lane Scheppell posted a helpful summary of how the revised indictment differs from the original, and she kindly gave me permission to reprint it here.
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Following the Supreme Court’s immunity decision, Smith appears to have removed all “official duties” evidence from the case and resubmitted it to a new grand jury for indictment, a move that makes it harder for Trump’s defense team to argue that the case should be dismissed because the evidence presented to the grand jury was flawed. They gave the case a deep clean.
- The indictment contains the same four charges as before.
- However, given what the Supreme Court said about the President’s absolute immunity in its conversations with the Department of Justice, the indictment excludes Jeffrey Clark as an unindicted co-conspirator.
- The indictment emphasizes that all of the unindicted conspirators are private citizens working for or as consultants to the campaign, and makes clear that various other parties suspected of involvement and who will be called to testify at trial did not discuss matters with Trump within the scope of his presidential duties.
- A significant element of this case now belongs to candidates Donald Trump and Mike Pence, and they are clearly not interacting as president and vice president in the relevant conversations.
Just Security’s analysis by Norm Eisen, Matt Seligman and Joshua Kolb is spot on, pointing out which parts of the indictment are valid and which parts are invalid. https://www.justsecurity.org/98457/immunity-january-6th-chutkan/ and https://www.justsecurity.org/wp-content/uploads/2024/08/united-states-v.-trump-dC-%E2%80%93-annotated-j6-eisen-seligman-kolb.pdf
For a line-by-line comparison of the new indictment and the original indictment, see Alison Gill’s post. here. Legal War Jacob Salam reason They also posted some helpful analysis of the new indictment.
Would the superseding indictment survive the inevitable immunity-based challenge? I think Smith makes a good case that the crimes Trump is charged with were private acts, not official acts. Even if the official acts could not be used as evidence (as the Supreme Court erroneously ruled), there would be enough evidence to convict Trump on all or most of the charges against him. Justice Amy Coney Barrett’s concurring opinion: Supreme Court ruling The decision provides further analysis of why Trump’s conduct was private rather than public (though it is notable that none of the other justices in the majority agreed with her). I also continue to believe that Trump is likely guilty of these charges and, if convicted, deserves severe punishment, both for retributive and deterrent reasons.
But the Supreme Court’s decision is far from a clear model on several key points related to this case. In particular, the line between private and official acts is blurred. It is also unclear whether there is only a presumption of immunity (which can be overturned) or whether immunity is absolute with respect to official acts outside the scope of the President’s “core powers.” The line between core powers and other official acts is also often unclear. So it’s hard to predict what will happen here when this issue is reviewed by lower judges, the DC Circuit, and possibly the Supreme Court.
One thing is clear: the issue is unlikely to be fully resolved before the November 5 election. If Trump wins, he will almost certainly find a way to have the charges dropped once he takes office. If he loses, the lawsuits against him (at least in part) will continue unless a court rules that all charges should be dismissed due to immunity. The latter scenario is unlikely, but not entirely impossible.
The Supreme Court’s decision was vague on key points, and it is likely that different justices will interpret it differently. If the case returns to the Supreme Court, it may become clear that the majority justices disagree on some of these issues. The vagueness of the decision may be a way to mask these differences, at least for the time being. As this legal battle continues, we may learn more about how the justices think about these issues.
