It’s nine pages shorter — but far stronger.
Donald Trump’s re-tooled election interference indictment, unveiled Tuesday by special counsel Jack Smith, proves that less really is more when it comes to charging a former president, a legal expert told Business Insider.
The previous indictment, which weighed in at 45 pages, had included what the US Supreme Court says is the kind of official-act evidence that can no longer be used in prosecuting presidents.
The replacement indictment — which uses the same font and spans 36 pages — removes references to Trump’s presidential acts with surgical precision, said Michael Bachner, a former Manhattan prosecutor and frequent commentator on Trump’s legal travails.
Both the previous and the new indictments charge Trump with the same federal counts of conspiracy and obstruction. But in the new indictment, it’s Trump the 2020 presidential candidate, not Trump the former president, who is charged.
Gone are all references to Trump conferring with officials from his Justice Department as he clung to power in the final weeks of his administration, the kinds of interactions that the Supreme Court ruled can no longer be used in prosecuting presidents.
“It certainly was the only move he had,” given that the previous indictment could never have survived a US Supreme Court challenge, Bachner, of Bachner & Associates in Manhattan, said of Smith.
“The first indictment was never going to pass Constitutional muster,” he said. “So if Smith wants to proceed against Trump his only choice was to have a new indictment voted that eliminated the issues raised by the Supreme Court on immunity,” he said.
“What they did was eliminate all reference to Trump in his official capacity and bring charges specifically against Candidate Trump,” he said. “They eliminated any conversations he would have had with the DOJ, specifically Jeffrey Clark, who he wanted to have appointed as his attorney general.”
The nine-page cut removes references to emails and conversations surrounding this attempted appointment that can no longer be used against Trump. Bachner called this excised evidence “helpful but not crucial.”
“It’s still a strong case, because frankly much of what Trump is accused of doing here was done in his personal capacity as a candidate” in the 2020 election he lost to President Joe Biden, Bachner said.
Smith was smart to convene a new grand jury rather than re-submit the case to the original panel, Bachner added.
Now, there can be no argument that the grand jury was prejudiced against Trump by having heard banned official-act evidence during the first grand-jury presentation, he said.
And it’s noteworthy that — even in media-crowded Washington — the second grand jury was able to meet for weeks and vote an indictment against Trump in absolute privacy, its existence only revealed after Tuesday’s vote, he said.
“Grand jury proceedings are secret by law, but it’s not unusual in a case of this high profile for somebody to leak it,” he said, noting that witnesses and their attorneys are not bound by secrecy rules.
“But I’m not surprised,” Bachner added. “Smith really believes in the integrity of this case, and that Trump’s guilt or innocence should be determined not by a judge,” as would happen if SCOTUS tossed the case, “but by a jury.”
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