WASHINGTON — Special counsel Jack Smith filed a new indictment Tuesday against Donald Trump for his efforts to overturn the 2020 presidential election, retaining the same criminal charges but narrowing the allegations against him following a Supreme Court opinion that granted broad immunity to former presidents.
The new indictment removes a section of the indictment that accused Trump of trying to use the Justice Department’s law enforcement powers to overturn his election defeat, an area of conduct for which the Supreme Court, in a 6-3 opinion last month, said Trump was absolutely immune from prosecution.
The simplified criminal case represents a first effort by prosecutors to comply with a Supreme Court opinion that made it almost certain that the Republican presidential nominee would not be tried before the November election in the case alleging he tried to thwart the peaceful transfer of power.
There are days left before prosecutors and defense attorneys will tell the judge overseeing the case how they want to proceed in light of the Supreme Court’s ruling that presidents are presumptively immune from prosecution for official acts of the White House. The Supreme Court sent the case back to U.S. District Judge Tanya Chutkan, who must now analyze which allegations in the indictment were non-official acts — or acts committed in a private capacity by Trump — that can be tried.
Prosecutors and Trump’s legal team will return to court next week for the first hearing before Chutkan in months, as the case has been effectively frozen since last December while Trump’s immunity appeal wound its way through the legal system.
In a statement on his Truth Social platform, Trump called the new indictment “an act of desperation” and “an effort to resurrect a ‘dead’ witch hunt.” He said the new case has “every problem with the old indictment and should be dismissed IMMEDIATELY.”
The special counsel’s office said the updated indictment, filed in federal court in Washington, was issued by a grand jury that had not yet heard evidence in the case. It said in a statement that the indictment “reflects the government’s efforts to comply with and implement the Supreme Court’s decisions and remand instructions.”
The new indictment removes any reference to allegations that could be considered official acts for which Trump is entitled to immunity in light of the Supreme Court’s decision. That includes allegations that Trump tried to enlist the Justice Department in his failed attempt to fix his election loss, including by conducting bogus investigations and telling states — falsely — that significant fraud had been detected.
In its opinion, the Supreme Court held that a president’s interactions with the Justice Department constitute official acts for which he is entitled to immunity.
The initial indictment detailed how Jeffrey Clark, a senior official in Trump’s Justice Department, wanted to send a letter to elected officials in some states, falsely claiming that the department had “identified significant concerns that could have impacted the outcome of the election,” but senior department officials refused.
Clark’s support for Trump’s claims of election fraud led Trump to openly consider appointing him as acting attorney general to replace Jeffrey Rosen, who led the department in the final weeks of the Trump administration. Trump ultimately relented to the idea “when told that it would lead to mass resignations within the Justice Department,” according to the original indictment. Rosen remained acting attorney general until the end of Trump’s term.
The new indictment no longer names Clark as a co-conspirator. Trump’s alleged co-conspirators are not named in either indictment, but the details help clarify their identities. The new indictment emphasizes that none of the other co-conspirators “were government officials during the conspiracies and that they all acted in their private capacities.”
The new indictment also removes references to Trump’s communications with federal government officials — such as White House lawyers — who told him there was no evidence of fraud that would change the outcome of the 2020 election. It also removes references to some of Trump’s statements, including a claim he made at a White House news conference two days after the election about a suspicious dumping of votes in Detroit.
The new indictment still includes one of the most stunning allegations Smith has made — that Trump participated in a scheme orchestrated by allies to enlist fraudulent voter registration slates in key states won by Democrat Joe Biden that would falsely certify that Trump had won those states.
The report also upholds allegations that Trump sought to pressure Vice President Mike Pence to reject legitimate electoral votes, and that Trump and his allies exploited the chaos at the Capitol on January 6 to try to further delay the certification of Biden’s victory.
Chief Justice Roberts wrote in his majority opinion that the interactions between Trump and Pence amounted to official conduct for which “Trump is at least presumptively immune from prosecution.”
The question, Roberts writes, is whether the government can rebut “this presumption of immunity.”
Supreme Court Justice Ketanji Brown Jackson disagreed with the decision. In an excerpt from an interview with CBS News’ “Sunday Morning” that aired Tuesday, she said, “I was concerned about a system that seemed to grant immunity to an individual in certain circumstances. When we have a criminal justice system that generally treats everyone the same.”
Associated Press writers Mark Sherman, Lindsay Whitehurst and Maya Sweedler in Washington contributed to this report.
