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A federal grand jury in Washington, DC, re-indicted former president Donald Trump on four felony charges over his attempt to subvert the results of the 2020 presidential election. Prosecutors filed an amended indictment to comply with the Supreme Court’s recent order granting broad immunity to presidents for their official acts.
In August 2023, Trump approached the courts claiming immunity against the federal charges of participating in a criminal scheme to overturn the results of the 2020 election. The case finally reached the Supreme Court, which made a 6-3 decision on July 1, largely on ideological lines, granting Trump’s claim to a certain extent, by making it clear that not all charges made by special counsel Jack Smith could proceed, as some of them were covered by presidential immunity. It also had an impact on other cases against Trump as well, including the Stormy Daniels hush money case by the Manhattan district attorney, in which Trump was found guilty. It was a landmark judgment, clearly demonstrating the power of the court’s conservative majority and the right-ward shift evident in the court’s jurisprudence. The judgment was widely criticised by many legal scholars as they felt that it went against the spirit of the constitution and the intent of the founding fathers by making presidency almost autocratic.
Following the Supreme Court intervention, Smith got the superseding indictment from a grand jury that did not previously hear evidence in the case. The move was somewhat surprising and it shows that the department of justice plans to pursue the case vigorously. "The superseding indictment reflects the government's efforts to respect and implement the Supreme Court's holdings and remand instructions," said a justice department spokesperson. The facts and the circumstances of the case and the four original felony charges, meanwhile, remain unchanged: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, attempt to obstruct an official proceeding and conspiracy against rights.
A key feature of the superseding indictment is that it removed all possible allegations that could be construed as being part of Trump’s official acts as president. It draws a clear distinction between Trump’s private actions, which can be prosecuted if found illegal, and actions that flow from his official powers, which are immune from prosecution. So, much of the language of the indictment has been changed to focus on Trump’s actions as a candidate, not as the sitting president.
The biggest change between the 36-page superseding indictment and the 45-page original version appears to be the removal of Trump’s conversations with justice department officials in which he is alleged to have asked them to support his false claims of election fraud. Notably, the new indictment omits all references to “co-conspirator four,” who was mentioned more than 30 times in the original indictment. Co-conspirator four is former DOJ official Jeffrey Clark, who held a senate-confirmed post as head of the department’s environmental and natural resources division and was serving as the acting head of the civil division at the time of the January 6 riots. As Clark supported all of Trump's claims, the White House was inclined to name him as acting attorney general, replacing incumbent Jeffrey Rosen.
Trump was angry that Rosen and several other officials he appointed had refused to send letters to local election officials claiming fraud in the presidential election. Clark was a willing participant, so Trump wanted to put him in charge. Ultimately, Trump backed off after senior DOJ officials threatened to quit. Clark no longer features in the indictment as the Supreme Court held that Trump’s interactions with justice department officials could be considered as part of his official duty and, therefore, enjoys immunity. Prosecutors also omitted references to Trump’s interactions with the White House and other administration officials.
The superseding indictment, however, has kept references to vice president Mike Pence and his role during the events of January 6, 2021, the day of the Capitol riots. But the focus is now completely on his role as president of the senate, as the Supreme Court ruled that the vice president’s job of presiding over the senate was “not an ‘executive branch’ function”, thereby not covered by immunity.
The charges against Trump for interfering with the functions of state election officials who certify their state’s presidential election results, and of obstructing the certification of the electoral college results by the Congress have been retained in the new indictment. The prosecution has made it clear that such interference has nothing to do with Trump’s official responsibilities. The president, the indictment points out, has absolutely no role in certifying the election results, so his interference is not covered by immunity.
The new indictment also retains much of the false claims Trump made about the election result, especially on social media, calling it “rigged” and “stolen”, despite officials belonging to both Republican and Democratic parties guaranteeing that it was fair and legitimate. Prosecutors say that while Trump may have been using social media platforms like Twitter “to communicate with the public as president about official actions and policies, he also regularly used it for personal purposes”,... “making false claims... with deliberate disregard for the truth”.
The decision by the prosecutors to revive the case as the presidential election has entered the homestretch makes it politically interesting. The case was more or less frozen following the Supreme Court verdict on immunity. It has since been returned to US District Judge Tanya Chutkan, who was dealing with the case. She had asked the defence and the prosecution to file a joint status report by August 30, outlining their proposed schedules. By filing a superseding indictment, Smith has thrown down a legal as well as political challenge to the Trump team.
Chutkan, who was appointed by president Barack Obama, still has the power to decide on the maintainability of the new indictment as she needs to evaluate it against the Supreme Court’s immunity ruling and to decide which evidence remains admissible. The Trump team is certain to fight hard to delay the proceedings as much as possible, perhaps even returning to the Supreme Court.
As far as the political fallout of the new indictment is concerned, it could be a mixed bag for both the Trump and the Kamala Harris campaigns. When a number of civil and criminal indictments were brought against Trump in the past year, Democrats had hoped that it would hurt him politically. But it really did not affect Trump’s ratings or his standing among the Republican voters as evident from his sweeping victory in the primaries. Even his conviction on 34 felony counts in the hush money case and in a massive fraud case did not have any major impact. So it remains to be seen how the superseding indictment could hurt him electorally.
The Democrats, however, hope that the fundamentally altered dynamics of the election could help them make use of the new indictment. With Harris as their candidate in the place of Joe Biden, they are likely to play up the ‘perp versus prosecutor’ dichotomy. With the new indictment coming so close to the November polls, they hope it will finally have an impact as it will help push issues like Trump’s alleged criminal behaviour and autocratic tendencies back into the limelight. While the case will not go to trial before the elections, there could be evidentiary hearings by Judge Chutkan which will be covered widely by the media.
Trump, meanwhile, has blasted the new indictment as a direct attack on democracy. Maybe he is even relieved that the spotlight is back on him, after losing the upper hand to the surging Harris campaign. His team has already sent out a fundraising email urging supporters to "stand with Trump" by donating money. On social media, Trump alleged that the White House was orchestrating a new campaign against him. “This ridiculous political hoax, which most thought was already won by me, comes right out of the White House and the DOJ,” wrote Trump. “It is being pushed by Kamala Harris and Crooked Joe Biden against their political opponent, ME.”