Donald Trump is expected to continue to battle against criminal charges of trying to overturn the 2020 election by challenging further parts of the revised indictment that removed allegations the US supreme court found were subject to immunity.
The superseding indictment filed on Tuesday by special counsel prosecutors mainly removed allegations about Trump’s efforts to use the justice department to obstruct the peaceful transfer of power and reframed the narrative to say Trump was being charged in his capacity as a candidate.
The document retains the same four criminal conspiracy statutes against Trump that were originally filed last summer. But portions of the new indictment were rewritten to emphasize that Trump was not acting in his official capacity during his efforts to try to overturn the election.
Trump’s lawyers see the changes as minimal and will seek to pare back the charges further, according to people familiar with the matter, because they consider large parts of what remains in the updated indictment to be presumptively immune conduct that the judge needs to resolve.
In that sense, there are no immediate consequences of the special counsel Jack Smith getting a superseding indictment in the case. Trump still plans to initiate new litigation, which will be appealed to the US court of appeals for the DC circuit, and any trial would not happen before the November election.
Trump’s lawyers are first expected to file a new motion to dismiss the indictment based on the supreme court’s immunity ruling, the people said.
If such a move is denied by the presiding US district judge Tanya Chutkan – as is likely – they will continue with their plan previously reported by the Guardian to challenge big-name witnesses like former vice president Mike Pence from testifying at any evidentiary hearings.
The plan to open a new legal battle over any evidentiary hearings are aimed at having the triple effect of burying damaging testimony, making it harder for prosecutors to overcome the presumptive immunity for official acts, and injecting new delay into the case through protracted legal fights.
Trump has already been enormously successful in delaying his criminal cases, including by succeeding in having the supreme court from taking the immunity appeal in the 2020 election subversion case in Washington, which was frozen while the court considered the matter.
The delay strategy thus far has been aimed at pushing the cases until after the November election, in the hope that Trump would be re-elected and then appoint as attorney general a loyalist who would drop the charges.
But now, even if Trump loses, his lawyers have coalesced on a legal strategy that could take months to resolve depending on how prosecutors choose to approach evidentiary hearings, adding to additional months of anticipated appeals over what Chutkan determines are official acts.
For instance, if prosecutors try to call Pence or his chief of staff Marc Short to testify about meetings where Trump discussed stopping the January 6 certification, Trump would try to block that testimony by asserting executive privilege, and having Pence assert the speech or debate clause protection.
Trump’s lawyers would argue to Chutkan that any privilege rulings during the investigation that forced them to testify to the grand jury were not binding and the factual record needed to be decided afresh.
Meanwhile, witnesses such as former Trump lawyer John Eastman or former Trump campaign official Mike Roman would almost certainly be precluded from testifying because they have valid fifth amendment concerns of self-incrimination, as they have been separately charged with conspiring to overturn the 2020 election results in Fulton county, Georgia.
