WASHINGTON – The prosecutor in former President Donald Trump’s federal election interference case secured a new indictment against Trump Tuesday. The new superseding indictment is intended to deal with the Supreme Court’s decision in July that Trump had broad immunity from charges relating to official acts as president.
The new indictment basically sought to distinguish Trump’s private actions, which could face charges, from public duties, which would be immune from prosecution. For example, the indictment alleged his false statements about election fraud in social media posts and during his speech near the White House on Jan. 6, 2021, were campaign related and thus “private” rather than official.
One of the starkest changes in the indictment removed allegations against an unindicted co-conspirator, Jeffrey Clark, who was then an assistant attorney general. Clark helped Trump pressure other Justice Department officials to overturn the results of the 2020 election, but numerous references to the department and that effort were removed from the indictment.
The Supreme Court had ruled that Trump couldn’t be prosecuted for that conduct because the Justice Department is part of the executive branch that he oversaw as president.
Trump called the new indictment “ridiculous” in a post on Truth Social and argued it “has all the problems of the old indictment, and should be dismissed IMMEDIATELY.”
Trump’s claims of widespread voter fraud in 2020 ‘were false’: indictment
A grand jury that had not previously heard evidence in the case updated the indictment to respect and implement the Supreme Court’s decision, according to Peter Carr, a spokesperson for Justice Department special counsel Jack Smith.
“Despite having lost, the Defendant − who was also the incumbent president − was determined to remain in power,” the indictment said. “So, for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been an outcome-determinative fraud in the election and that he had actually won. These claims were false, and the Defendant knew that they were false.”
Trump was accused of trying to use the Justice Department to open baseless election crime investigations in order to influence state legislatures with claims he allegedly knew were false. State election officials and then-Attorney General Bill Barr had told him the allegations about widespread voter fraud had been investigated and dismissed.
But the high court ruled that the former 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,” Chief Justice John Roberts wrote for the court.
Chutkan must still decide which charges against Trump conform with the Supreme Court’s ruling
U.S. District Judge Tanya Chutkan, who is presiding over the case, must still decide which charges – if any – can survive the Supreme Court’s ruling. Trump has pleaded not guilty and argued the case should be dismissed. But Smith is scheduled to submit a proposed schedule for arguments about the charges Friday.
The new indictment added phrasing that then-Vice President Mike Pence was acting in his capacity as president of the Senate when he oversaw the counting of Electoral College votes on Jan. 6, 2021. Pence defied Trump’s pleas to recognize Republican slates of electors in states that President Joe Biden had won.
The Supreme Court had ruled that Trump’s presumed immunity for official acts could be rebutted by the circumstances. For example, the court said despite the vice president’s expansive role of advising and assisting the president, his responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.”
“It is ultimately the Government’s burden to rebut the presumption of immunity,” Roberts wrote, in sending the case back to Chutkan for review.
Another change in the new indictment was that unindicted co-conspirators were listed as “private” lawyers and consultants. The change applied to lawyers Rudy Giuliani, John Eastman, Sidney Powell and Kenneth Chesebro, who promoted Trump’s claims of widespread fraud and developed the plan to submit alternate slates of electors.
The private lawyers weren’t charged in the federal case, but they face charge in state cases in Arizona and Georgia. Powell and Chesebro have pleaded guilty in Georgia. The “private” political consultant was Boris Epshteyn, who has been charged in Arizona.