The Department of Justice filed a superseding indictment against Donald Trump in Washington, D.C., keeping the four central criminal charges against the former president accusing him of election interference but focusing on the actions of his campaign after the Supreme Court put the original case in doubt.
DOJ special counsel Jack Smith on Tuesday opted to zero in on the actions Trump took as a candidate seeking to remain in office — rather than base it on his use of power as president. This followed a recent Supreme Court ruling that granted Trump an expansive new definition of presidential immunity and forced prosecutors to seek ways to salvage the criminal case.
While the first indictment said Trump “repeated and widely disseminated” lies about voter fraud intended to deny Americans their right to a fair election, the new indictment says “the defendant used his campaign to repeat and widely disseminate them.”
The superseding indictment comes just nine days before the DOJ would run into its “60-day rule,” an internal policy that prevents prosecutors from specifically timing criminal cases that could sway an upcoming election. The Nov. 5, 2024, presidential election is 69 days away.
While the underlying indictment remains largely the same, the new court filing shows how prosecutors are looking for creative ways to try to avoid potential pitfalls created by the Supreme Court’s ruling that gives broad immunity to “official” acts by a president.
For example, prosecutors still say Trump “enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power.” But they now specify that Trump’s allies were outsiders who were serving in political roles.
“These co-conspirators included the following individuals, none of whom were government officials during the conspiracies and all of whom were acting in a private capacity,” prosecutors clarified this second time around.
Prosecutors also went out of their way to make clear that the collaborators they referenced in the indictment were “private” lawyers and a “private” adviser. Yet another co-conspirator was dropped from the indictment entirely: an unnamed DOJ official, widely identified as Jeffrey Clark, who floated the idea of weaponizing the department to intimidate state officials by announcing a contrived investigation into election results.
Tuesday’s filing shows how prosecutors are now trying to draw a clearer line between Trump’s role as the nation’s commander in chief and his attempt to steal Joe Biden’s victory at the polls nationwide. They made a point of noting that he had help from people outside the White House, a legal strategy aimed at keeping Trump from using immunity as a legal shield.
Prosecutors specified that Trump’s pressure campaign on Vice President Mike Pence to halt certification of the election results was meant to influence him in his role as “president of the Senate” rather than as vice president.
Prosecutors also made an effort to cast Trump as trying to meddle with the workings of the legislative branch of government. That would be a clear violation of his role as president, as it has been universally defined by legal scholars and Supreme Court justices.
Trump has pleaded not guilty and has tried to assert that his actions were justified within the scope of his official duties.
This new indictment hints at how it may be more difficult for prosecutors to prove in court that Trump wasn’t just wrong about supposed election fraud but that he actually knew he was acting in bad faith. Whereas Smith intended to point to interagency government communications to build the case that Trump was officially informed that his conspiracy-laden public statements were wrong, prosecutors are now relying on private warnings that Trump heard from advisers and public statements that came from state election officials.
In the previous iteration of these criminal charges, investigators noted how “senior leaders of the Justice Department” told Trump “on multiple occasions that various allegations of fraud were unsupported.” Those warnings were echoed by the director of national intelligence and even the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency — which Trump had created to serve as a guardian of election systems.
But those government-centric details were dropped on this second go-around, with Smith’s prosecution team instead emphasizing that Trump “was on notice that his claims were untrue” because he’d been “told so by those most invested in his re-election, including his own running mate and his campaign staff.” Investigators now highlight how state election directors across the country had publicly asserted that 2020 was “the most secure in American history.”
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Jose Pagliery is a reporter at NOTUS.