The Supreme Court’s late-term decision recognizing a dangerously expansive immunity from criminal prosecution for former presidents effectively cut off any chance of the original indictment in the January 6 case against former President Donald J. Trump going forward. But for all its terrible flaws, the immunity decision left a path for Special Counsel Jack Smith to pursue a narrowed case that targets only conduct for which Trump is not immune. So Smith seized that opportunity by filing a superseding—or amended —indictment against Trump on Tuesday.
The filing is an explosive reminder of the powerful criminal charges against Trump and puts the lie to those who said the case might be dead in the aftermath of the immunity decision. Together with the pretrial proceedings to follow, this development thrusts the question of Trump’s criminality back into public focus during the heart of the campaign.
In the superseding indictment, Smith retained all four charges in the initial indictment. But to comply with the Court’s decision, prosecutors trimmed certain factual allegations to ensure that those charges are predicated on conduct that is not shielded by immunity. In particular, they excised all allegations related to Trump’s interactions with the Department of Justice. Although those allegations involve a chilling abuse of power, the Court held that they constitute a core executive function for which presidents are absolutely immune.
As a result, Trump’s attempts to weaponize the Department of Justice to his own private ends are no longer part of the case. Gone is the allegation that he pressured the Department to release a letter falsely claiming that the election was marred by outcome-determinative fraud. Gone is the allegation that he sought to use the Department to press state officials to certify his electors, rather than those of President Joe Biden. And gone is the allegation that he attempted to install his now-excised co-conspirator, Jeffery Clark, as the Acting Attorney General to implement his scheme when other officials resisted.
The vast majority of the conduct alleged in the original indictment, however, remains. The core of Trump’s plot to reverse the legal results of the 2020 election involved unofficial acts for which he is not immune: spreading false conspiracy theories about voter fraud, organizing fraudulent “alternate” slates of electors, and then seeking for those fraudulent electors’ votes in the Electoral College to be counted on January 6. Each of those elements survives essentially unscathed in the superseding indictment.
From the very first paragraph, the superseding indictment clarifies that Mr. Trump is being prosecuted for his conduct as a candidate, not as president. That distinction is essential because the lies Trump spread through his campaign as a candidate were not official acts of the office he sought. Similarly, organizing fraudulent alternate slates of electors bears no connection to any official responsibility of the president. Just like Biden and the Democratic Party organized their slates of electors, Trump and the Republican Party organized their own slates of electors. Both were the political actions of each respective candidate; neither constituted an official act.
Trump’s plot culminated in pressuring Vice President Mike Pence to recognize the fraudulent electoral certificates on January 6 and count those electors’ sham votes for Trump. The Supreme Court held that Trump’s interactions with Pence were official acts, but even still those interactions are only presumptively immune—they are not immune if, in the Court’s words, their prosecution would not “pose any dangers of intrusion on the authority and functions of the Executive Branch.” Smith clearly believes he can overcome the presumption.
To accommodate the Court’s rule, Smith wisely clarified that Pence presided over the electoral count in his legislative capacity as President of the Senate. It is difficult to see how it would interfere with the functioning of the executive branch to prosecute a former president for pressuring a legislative branch official to take plainly unconstitutional action over the electoral count. That was conduct by candidate Trump, not President Trump, and is fair game for prosecution.
The case that emerges from Smith’s superseding indictment against Trump is strikingly similar to the case he made in the original indictment last year. Indeed, of the seven categories of allegations in the original indictment, six of them remain in the superseding indictment almost untouched.
Smith’s decision to file a superseding indictment, rather than simply striking the Department of Justice allegations from the original indictment, is strategically savvy. Providing a cleaned-up version is a more elegant solution that avoids confusing the court and ultimately the jury. Moreover, by going back to a grand jury to get a new indictment, Smith cuts off any argument that the excised immune allegations taint this indictment—and it allowed him to add subtle clarifications about why the remaining allegations are not immune.
What happens next? The case that many assumed was dead after the Supreme Court’s immunity decision will roar back to life in the coming weeks and months. Because Smith filed a new indictment, Trump must be arraigned once again. On Friday, the parties will propose how Judge Chutkan should proceed. Next week, on September 5, she will hold a status conference about those proposals and to decide on the next steps in the case, potentially including substantial pre-trial proceedings before the end of the year.
The Supreme Court directed the trial court to apply its immunity test, and that will require Judge Chutkan to take evidence. She will need to review documents and may choose to hear from witnesses to answer questions like whether Trump’s public claims of voter fraud were the unofficial acts of a candidate, whether his pressure campaign against Pence must be immune to protect the functioning of the executive branch, and whether organizing alternate slates of electors was (somehow) part of the president’s official responsibilities.
If she holds an evidentiary hearing, or mini-trial, that may well happen before November. Such a proceeding, where witnesses like Mr. Pence and former RNC chair Rhonna McDaniel could testify, would not yield an ultimate verdict on Trump’s guilt or innocence, but would allow the American people to hear the unvarnished facts about Trump’s conduct in the last election as he seeks to win the next one. Even if recent reporting that Smith has decided against requesting a mini-trial turns out to be true, Judge Chutkan could choose to proceed with one anyway if she believes it's necessary to develop the factual record—the Supreme Court chastised her in its opinion for failing to do that. She has said that defendants before her commonly have job-related inconveniences that do not derail their criminal cases, and Trump shouldn’t be treated any differently.
But we should be realistic about the prospects for trial in 2024. Even if Judge Chutkan proceeds with an evidentiary hearing prior to Election Day and, applying the Supreme Court’s new test, decides that Trump is not immune for the conduct in the superseding indictment, that ruling would itself be subject to an immediate appeal. As a result, the Supreme Court will almost certainly review the immunity issue a second time before Trump would face trial—which would likely occur in 2025 at the earliest.
Even without a trial on the immediate horizon, these pre-trial proceedings in the January 6 case—together with expected September developments, including a sentencing in Trump’s conviction in New York—means that Trump’s alleged election interference promises to be a recurring theme over the remaining 70 days before Election Day.
That theme should bring into sharp focus the stakes facing American voters. Should Trump win reelection, he will surely order the Department of Justice to drop the criminal cases against him, pardon himself, or both. That means that the 2024 election is in effect a referendum on whether Trump ever faces a trial in the January 6 case at all.
There is not a lot Smith can do about that; he’s a prosecutor, not a politician. He is appropriately leaving the political judgment to the voters, and proceeding as if a trial is inevitable. He is treating the most significant criminal case in American history as a run-of-the-mill prosecution. That decision should confirm that Smith’s case is a matter of defending the rule of law against Trump’s attacks on it, not a politicized prosecution as Trump has claimed.
But there is one thing Smith can do that is both legally sound and politically salient: to make clear that he thinks that he continues to have a strong case, that it almost entirely survives the Supreme Court’s abysmal decision: Get ready now for a mini-trial or a real one whenever it transpires.
