The Pared Down Superseding Indictment for January 6
As I predicted in this post, Jack Smith did not wait around for a dispute before Tanya Chutkan to talk about which allegations in the January 6 indictment against Trump are and are not official acts. He superseded the existing indictment.
But Smith took the “pared down” approach NYT’s Alan Feuer imagined: The indictment takes out all reference to Jeffrey Clark. It emphasizes throughout that Trump worked with private individuals to try to steal the election.
That said, it does keep the Mike Pence allegations in the indictment, emphasizing that those actions were exclusively about remaining in power.
Update: In his notice regarding this superseding indictment, Smith emphasized that he used an entirely new grand jury. He would have had to do that anyway — the one he had used previously expired last summer, probably over a year ago.
Today, a federal grand jury in the District of Columbia returned a superseding indictment, ECF No. 226, charging the defendant with the same criminal offenses that were charged in the original indictment. The superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions in Trump v. United States, 144 S. Ct. 2312 (2024). The Government does not oppose waiver of the defendant’s appearance for arraignment on the superseding indictment. See Fed. R. Crim. P. 10(b). As this Court directed, ECF No. 197, the Government will confer with the defense and make a joint proposal, to the extent possible, regarding pretrial litigation in the status report due Friday.
But the mention of “pretrial litigation” suggests he wants to pick up where he left off.
Update: Here are the parts of my post from Saturday explaining what the logic here would be.
Now, as I suggested, even if you were doing nothing more than removing the Jeffrey Clark references, doing so would be smart in any case. Not only could Smith excise all the Jeffrey Clark materials, thereby giving Trump less surface area to attack the indictment, but he could tweak what is already there to address some of the other concerns raised by SCOTUS, for example, to clarify how candidate Trump’s reliance on fake elector certificates do not threaten Executive authorities. But minor tweaks, even the excision of the Jeffrey Clark stuff, would not require consultation with DOJ, and if Jack Smith were just excising the Jeffrey Clark stuff, he could have done that before DOJ’s election prohibition on indictments kicks in on roughly September 1.
So let’s talk about what would require consultation with DOJ, consultation requiring two full months from the immunity ruling, because it raises ways that Smith might supersede the indictment that would be a lot more interesting than simply excising the Clark stuff:
- Consultation with the Solicitor General’s office regarding edge cases on official acts
- Consultation with DC USAO on how to apply obstruction more generally
[snip]
Consultation with the Solicitor General’s office regarding edge cases on official acts: First, and least controversially, DOJ would consult with the Solicitor General’s office regarding any more difficult issues regarding official acts. Perhaps the most obvious of these — and one squarely raised in SCOTUS’ ruling — is the status of Mike Pence in conversations about certifying the electoral certificates. If Pence was acting exclusively in his role as President of the Senate, then Trump’s relationship to him would be as a candidate, and so under Blassingame, an unofficial act. But the Republicans on SCOTUS want to argue that some of these conversations were official acts, making Pence’s testimony inadmissible under their order. If DOJ is superseding an indictment to excise the things that need to be excised, DOJ would want the Solicitor General involved in such decisions not just because they’ll have to defend whatever stance Jack Smith adopts, but also so as to protect the equities of the Executive Branch, which DOJ traditionally guards jealously.
Consultation with DC USAO on how to apply obstruction more generally: More interestingly (and as I focused on here), if Jack Smith were to supersede the indictment against Trump, he would undoubtedly tweak the language on the two obstruction charges to squarely comply with the Fischer decision limiting it to evidentiary issues.
Since Smith got his extension, DOJ has started weighing in on a handful of crime scene cases where (unlike around 60 others) it thinks it can sustain obstruction charges under a theory that the defendant knew the import of the electoral certifications themselves and took steps to obstruct the actual counting of them.
[snip]
DOJ is making the effort of trying to sustain the obstruction charges for defendants who can’t be charged with one of several other felonies (obstructing the cops or rioting), but whose conduct — DOJ believes — should still be a felony. They’re going to have to do this with some members of the two militia conspiracies, the felony convictions on which are often the primary felonies (though DOJ used the obstruction of cops with them too).
It’s fairly easy to see how this effort has to harmonize with however Smith revamps the obstruction charges against Trump. And given the evidence that Smith was moving to include the Proud Boys in Trump’s case, that harmonization may be key to sustaining obstruction charges against the Proud Boys.
The other parts — on if Smith decided to add new charges — aren’t relevant here.
Somewhat disappointed but I can hear the question for TFG’s attorneys already, “What was Sidney Powell’s title within the Executive Branch?”
Pence, I hope, will be about whether the Constitution makes any reference to the President having a role in Vice President’s duties Senate President (hint: it doesn’t).
SC Smith never ceases to amaze me about how to prosecute a tinpot dictator wannabe. That time in the Hague was well spent.
So, what are the next steps and timeline? At least with the mini-hearing there would have been a public airing of evidence, but it would now appear that there will be briefings at most before the election which plays into Convict-1’s hands.
I imagine that Team Trump will want to argue that the indictment is defective, and in particular to argue that his conversations with Pence are subject to presidential immunity notwithstanding that those at issue concerned Pence’s role as President of the Senate.
I imagine that Chutkan would want to deal with any such issue sooner rather than later. Trump is inevitably going to try to push off anything substantive for as long as possible. But I imagine that Chutkan is going to disappoint him.
Litigation about this between now and Election day will not be helpful to Trump but he may have to suck it up. He is going to go ballistic about election interference, but it seems to me that DOJ guidance has been followed, and the court was seized of the matter so timetabling issues are a matter for the court.
Trump is probably also going to insist on arguing that because Twitter became an official channel for communication during his Presidency then the prosecution cannot rely on any tweets by him, because all tweets are official acts. The issues of the application of the SCOTUS decision is different here, because of the way the decision dealt with public statements and rebuttal presumption whether statements are official or acts in a private capacity. The very fact of arguing that is going to bring his conduct sharply into focus..
So although there won’t now be the mini-hearing as previously anticipated, there is going to be some rehashing of important parts of the evidence I would have thought.
Whatever eventually happens with this case, I think the fact that Trump has again been indicted brings his criminality and the events of January 6 to the forefront of the news, which may be a good thing for the election. Of course it’s hard to believe that someone like Trump has a chance to be president again, but this is what we got, so vote and get out the vote!
https://bsky.app/profile/nycsouthpaw.bsky.social/post/3l2pz62e7vp2z
Aug 27, 2024 at 4:06 PM
Yes, it is important to note – and maybe the mainstream media will note – that the indictment was by a new grand jury. The name of the ham sandwich is Donald J. Trump. Eating that ham sandwich will cause severe and likely fatal indigestion. Better to put it in storage for a long time.
Thanks.
If Harris wins a trial before Jan 20, 2025 may result in a conviction of Trump. That is Smith’s goal, a verdict that the Sp Ct will allow to stand.
If Harris loses, none of this makes any difference.
Keeping the charges alive, without putting Trump in a courthouse may be the best outcome politically.
One of those few times I’ll suggest that a comma be inserted by one of our great contributors.
I think this should be “If Harris wins, a trial before Jan 20, 2025 may result in a conviction of Trump.”
Otherwise I was reading that Harris had to win a trial…
No Trump case will get to trial, let alone get to a verdict, before inauguration in January 2025.
If you’re adding commas, there should be one after “wins,” the end of a prepositional phrase, and after “2025,” a parenthetical.
EW,
Your latest Xeet could be a whole post. But then again, you pretty much wrote that post previously!
https://x.com/emptywheel/status/1828554002575040619?
From a non-lawyer: Has Jack Smith made his superseded indictment comply with the Supreme Court immunity ruling so it cannot be interfered with again by the SCOTUS on appeal?
And if so will a conviction withstand, as Badger Robert notes at 6:07 PM post, SCOTUS interference with respect to sentencing?
A man can dream…
Clearly Smith’s argument will be that this indictment is compliant.
Trump will argue the contrary.
If Chutkan rules that it is, or is substantially compliant but for some minor futher excisions, then Trump will have the possibility of interlocutory appeals. If Chutkan rules against Smith he has the possibility of interlocutory appeal.
It seems more likely that Chutkan will generally favor the Smith argument.
So I doubt there will be a trial soon, as Trump appeal to DC Circuit and then SCOTUS are likely.
On a slightly related note, SCOTUS has deemed any official act immune. Therefore Jeffrey Clark is off the hook on Jan 6th since a President can officially tell his/her DoJ what to do, regardless of what the resulting acts may be evidently. I note that since achieving its conservative majority SCOTUS has also limited the powers of various agencies under the executive, especially in regard to interpreting laws and enforcing regulations. Given the immunity for official acts afforded to the President by SCOTUS, couldn’t a President just tell his various departmental Secretaries and the agencies under them to enforce the regulations as he/she pleases? Wouldn’t that act be official?
Well, Clark isn’t exactly off the hook. He could be indicted for anything he did that violates the law, subject to the statute of limitations. The immunity only runs to the President, and he can’t immunize his minions for their crimes.
A president could, of course, pardon them immediately, as SCOTUS says that this is beyond any prosecution.
This is just one more example of the horrifying implications of US v. Trump.
Apologies for the username change. Accidental. My fingers moved too fast and my eyes didn’t notice.
One difference between the Indictments is how TRUMP’s J6 Rabble Rousing is described:
8/1/23: https://www.documentcloud.org/documents/23893942-230801-trump
8/27/24 [link above]
The new indictment calls it a Campaign speech throughout.