Special Counsel Revises Trump Election Indictment to Address Immunity Ruling

 

Special Counsel Revises Trump Election Indictment to Address Immunity Ruling

 

Jack Smith’s filing, in the case charging the former president with plotting to overturn the 2020 election, came in response to the Supreme Court’s ruling giving former presidents broad immunity.

 

Alan Feuer Charlie Savage

By Alan Feuer and Charlie Savage

Aug. 27, 2024

https://www.nytimes.com/2024/08/27/us/politics/trump-indictment-election-jan-6.html

 

Federal prosecutors on Tuesday issued a pared-down version of an indictment accusing former President Donald J. Trump of plotting to overturn the 2020 election, stripping out some charges and tweaking others to help the case survive the Supreme Court’s recent ruling granting former presidents broad immunity.

 

The revised indictment, issued in Federal District Court in Washington, represented an attempt by prosecutors in the office of the special counsel, Jack Smith, to preserve the bulk of their case against the former president while bringing the allegations into line with the Supreme Court’s landmark ruling that former presidents are immune from criminal prosecution for many official acts taken while in office.

 

It kept the basic structure of the first indictment, issued nearly 13 months ago, which accused Mr. Trump of intersecting plots to overturn the results of the 2020 election. The thrust of the changes was to remove any discussion from the indictment of any allegations that might be construed as related to Mr. Trump’s official acts as president while also contending that others acts should be interpreted as the conduct of a private candidate for office.

 

The tone of the new charges was apparent from the first paragraph of Mr. Smith’s filing, which described Mr. Trump as “a candidate for president of the United States in 2020.” The original indictment had referred to him as “the 45th President of the United States and a candidate for re-election in 2020.”

 

The new indictment came just days before Mr. Trump’s lawyers and Mr. Smith’s deputies were scheduled to provide the judge overseeing the case, Tanya S. Chutkan, with their proposals for how to assess the impact on the case of the Supreme Court’s immunity decision. The two sides are still expected to file papers to Judge Chutkan on Friday, suggesting how they would like to move forward.

 

The indictment was also filed in advance of the onset of the so-called 60-day rule, an unwritten internal Justice Department practice that calls for avoiding taking overt prosecutorial steps that could influence how people vote within two months of an election.

 

In a post on social media, Mr. Trump cast aspersions on Mr. Smith and his new indictment.

 

Federal prosecutors issued another version of an indictment accusing former President Donald J. Trump of plotting to overturn the 2020 election after the Supreme Court granted former presidents broad immunity for official acts.

 

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Perhaps the most significant change between the 36-page superseding indictment and the original 45-page indictment was that Mr. Smith’s deputies removed all allegations concerning Mr. Trump’s attempts to strong-arm the Justice Department into supporting his false claims that the election had been rigged against him.

 

The initial charging document accused Mr. Trump of conspiring with Jeffrey Clark, a loyalist within the Justice Department who had promised to launch “sham election crime investigations” and to “influence state legislatures” to back Mr. Trump’s false claims of election fraud.

 

But in its ruling on immunity, the Supreme Court effectively struck those accusations from the case, finding that Mr. Trump could not face criminal charges related to his interactions with Justice Department officials. Instead, the court decided, a president’s dealings with the department were part of the core official duties of his office and, for that reason, were immune from prosecution.

 

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The revised indictment also removed references to Mr. Trump’s conversations with his White House aides and lawyer.

 

But it retained extensive accounts of his interactions with Vice President Mike Pence and his staff — repeatedly emphasizing that Mr. Pence was also Mr. Trump’s running mate and that Mr. Trump wanted him to act in his ceremonial capacity as president of the Senate, a role that arguably placed him beyond the reach of core executive branch powers and responsibilities.

 

Indeed, much of the old indictment survived Mr. Smith’s revisions more or less untouched. Mr. Trump, for instance, still faces the same four charges that he confronted in the original indictment and remains accused of overlapping conspiracies to defraud the United States, to obstruct the certification of the election at the Capitol on Jan. 6, 2021, and to deprive millions of Americans of their rights to have their votes counted.

 

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The revised indictment also retained several of the alleged plots that appeared in the initial charging document.

 

Mr. Trump remains accused of working with his subordinates to create fake slates of electors claiming that he won the election in several key swing states that were actually won by President Biden. He is also still facing charges related to his efforts to pressure Mr. Pence into throwing the election his way at the Jan. 6 certification proceeding at the Capitol.

 

And he remains charged with exploiting the chaos and violence that erupted at the building that day in order to pursue his goal of clinging to power.

 

In subtle ways, however, Mr. Smith’s deputies reframed many of their accusations to comport with the Supreme Court’s finding that Mr. Trump — along with all other future former presidents — enjoys the presumption of immunity for many acts undertaken in their official role as commander in chief.

 

Prosecutors cut from their new indictment some allegations based on statements that Mr. Trump made at official presidential events and conversations that he had with his formal White House advisers. They also slightly altered the descriptions of the six people accused of being co-conspirators, making sure to depict some of them as “private attorneys” — not just “attorneys” — so as to drive home the point that he was acting in his unofficial role as a candidate for office, not in his official capacity as president.

 

The revised indictment also retains many of Mr. Trump’s public statements on his social media account about the election, while explicitly arguing that those communications to the public should not be understood as official conduct.

 

“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,” the new version said.

 

It said Mr. Trump used social media “to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C., on Jan. 6, pressure the vice president to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on Jan. 6 to unlawfully retain power.”

 

The decision by Mr. Smith and his team to try to keep evidence about Mr. Trump’s attempt to pressure Mr. Pence into disrupting the counting of Mr. Biden’s Electoral College victory in the case could become a major focus of the coming fight before Judge Chutkan and in any further round of appeals.

 

In the Supreme Court’s immunity decision, Chief Justice John G. Roberts Jr. said that a president is “at least presumptively immune from prosecution” for his interactions with his vice president about constitutional duties, including the vice president’s conduct in overseeing the Senate.

 

Chief Justice Roberts wrote that it would be unconstitutional to prosecute a president for such interactions under certain circumstances, like discussions about casting a tiebreaking vote on legislation of importance to the administration. But he noted that a president plays no role in the counting of Electoral College votes, and left open the possibility that Mr. Trump’s pressuring of Mr. Pence in that context might be permitted into a criminal trial.

 

“It is ultimately the government’s burden to rebut the presumption of immunity,” Chief Justice Roberts wrote. He added that Judge Chutkan should take the first crack at assessing “whether a prosecution involving Trump’s alleged attempts to influence the vice president’s oversight of the certification proceeding in his capacity as president of the Senate would pose any dangers of intrusion on the authority and functions of the executive branch.”

 

In a brief filing that accompanied the new indictment, prosecutors noted that the revised charges had been “presented to a new grand jury that had not previously heard evidence in this case.”

 

That move was undertaken in an effort to keep Mr. Trump’s lawyers from claiming that the grand jury had been tainted by hearing testimony barred by the Supreme Court’s immunity decision. In their decision, the justices ruled that prosecutors were not permitted to introduce evidence stemming from a former president’s official acts even to help prove allegations related to unofficial acts.

 

Glenn Thrush contributed reporting.

 

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer

 

Charlie Savage writes about national security and legal policy. More about Charlie Savage