Jack Smith files superseding indictment in Trump Jan. 6 case with new grand jury to navigate around SCOTUS immunity decision

Left: Jack Smith: (AP Photo/Jacquelyn Martin). Right: Donald Trump (AP Photo/Craig Ruttle, Pool).

Special counsel Jack Smith on Tuesday filed a superseding indictment against former President Donald Trump in the Jan. 6 case.

The new filing retains all of the charges against Trump from the original indictment while aiming to accommodate and abide by the U.S. Supreme Court’s midsummer ruling on presidential immunity.

Notably, the 36-page superseding indictment was handed up by an entirely new grand jury empaneled to hear the case in the aftermath of the high court’s decision in Trump v. United States.

In a separate notice, Smith says the new indictment reflects his “efforts to respect and implement” the “holdings and remand instructions” in the Supreme Court’s landmark immunity decision.

In Trump v. United States, several aspects of the original indictment were seemingly plagued for intruding on the broadly outlined, court-created concept of immunity for official acts within a president’s so-called “core constitutional powers” and “remaining official actions.”

The opinion also noted that there is no immunity for unofficial acts.

“Certain allegations — such as those involving Trump’s discussions with the Acting Attorney General — are readily categorized in light of the nature of the President’s official relationship to the office held by that individual,” Chief Justice John Roberts’ opinion reads. “Other allegations — such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public — present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance.”

Teasing out what in the indictment might qualify as a core official act, an otherwise official act, or a nonofficial act — and what kind of immunity is sufficient to advance the goal of protecting the presidency in each instance — is certain to be a subject of hot dispute.

With his late Tuesday broadside, the special counsel looks to short-circuit much of the maneuvering likely to occur since the case made its way back to U.S. District Court Judge Tanya Chutkan.

Gone from the indictment are erstwhile references to Trump’s discussions with “senior leaders of the Justice Department.”

That rescission looks expressly crafted to jibe with the following section from the Supreme Court’s immunity ruling :

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” and the Constitution vests the entirety of the executive power in the President. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.”

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.

The majority opinion also endowed Trump with “at least presumptive” immunity over his efforts to pressure then-Vice President Mike Pence to deny the certification of certain Electoral College votes.

Smith, for his part, appears to be rolling the dice on presumptive immunity — a kind of limited immunity that can, in theory, be overcome by another party in a legal case or controversy.

That is, the superseding indictment does not excise the Pence pressure plan allegations.

In fact, Smith continues to allege Trump used his Twitter account to “pressure the Vice President to misuse his ceremonial role in the certification hearing.” The new indictment also alleges Trump and “co-conspirators attempted to enlist the Vice President” in their efforts to overturn the 2020 election results and that Trump “falsely told” his supporters to “exert pressure on the Vice President to take the fraudulent actions he had previously refused.”

Notably, the new indictment renders almost all of pages 9-11, as well as most of page 23, of the original indictment moot, seemingly in accord with the Supreme Court’s ruling.

In sum, the new grand jury’s post-immunity indictment contains nine pages less than the first indictment filed on Aug. 1, 2023.

Same as it ever was, Trump stands accused of one count each of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against the right to vote and to have votes counted.

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