WASHINGTON — Former President Donald Trump has once again been indicted over his efforts to overturn his 2020 presidential election loss, an effort that culminated in the Jan. 6 attack on the U.S. Capitol.
A federal grand jury on Tuesday returned a superseding indictment that charges Trump with the same four counts he faced in the original indictment last August: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights.
The new indictment was returned following the Supreme Court’s decision on presidential immunity last month, which barred the government from using certain “official acts” Trump took in his role as president in its prosecution.
“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,” special counsel Jack Smith’s office said in Tuesday’s filing.
Trump blasted the new indictment as “shocking” and “a direct attack on democracy” in a string of social media posts. “The case has to do with ‘Conspiracy to Obstruct the 2020 Presidential Election,’ when they are the ones that did the obstructing of the Election, not me,” he wrote. His campaign also sent out a fundraising email within two hours of the filing, saying Trump was “just indicted again” and urging supporters to “stand with Trump” by donating.
While the charges are the same, some of the evidence has been whittled down in light of the Supreme Court’s ruling, which expanded what could be considered official acts.
Gone from the superseding indictment are the sections that detailed Trump’s conversations with Justice Department officials in which he is alleged to have asked them to support his false claims of election fraud. Former Justice Department official Jeffrey Clark, who backed Trump’s claims and was almost named acting attorney general, has been removed as an unindicted co-conspirator. Prosecutors also removed references to advice Trump got from or conversations he had with direct advisers in the Oval Office, like White House counsel Pat Cipollone, and references to some of his tweets from that period.
The new indictment also notes Vice President Mike Pence’s role as president of the Senate on the day of the electoral vote count — Jan. 6, 2021 — in an apparent nod to concerns from the Supreme Court about whether evidence of Trump’s campaign to get Pence to intervene in the count should be allowed. The Supreme Court ruling said, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” and there is therefore a “presumption of immunity” around their conversations. But the ruling also noted that Pence’s responsibility of “‘presiding over the Senate’ is ‘not an ‘executive branch’ function.”
Other parts of the new indictment are the same, with prosecutors again taking the position that Trump didn’t actually believe the lies he was spreading in the wake of his 2020 election loss and that he knew that they were, in fact, lies.
“These claims were unsupported, objectively unreasonable, and ever-changing, and the Defendant and his co-conspirators repeated them even after they were publicly disproven,” the indictment says. “These claims were false, and the Defendant knew that they were false.”
While many Jan. 6 defendants have told courts that they now recognize they were tricked and lament that they were “gullible” enough to fall for the misinformation about the 2020 election that Trump promoted, Trump himself has never publicly admitted that he realizes he was spreading misinformation.
Trump’s state of mind will be a major issue at a future trial, which won’t take place before Election Day and could be complicated if he wins. If Trump is victorious, he or his appointees would almost certainly kill the case, as well as other Jan. 6 prosecutions: Trump has referred to Capitol rioters as “hostages” and “unbelievable patriots,” and he has indicated he would pardon many, if not all, Jan. 6 defendants. (Trump said he would “absolutely” consider pardoning every Jan. 6 criminal defendant, but his campaign has said pardons would be issued case by case.)
The Trump attorneys handling the superseding indictment in the election interference case told NBC News they are reviewing it.
Trump’s team was expecting the new indictment — it was “not a surprise,” even if the timing of Tuesday’s filing wasn’t necessarily expected, according to a source familiar with the Trump defense team’s thinking.
“This doesn’t change what we believe to be the fatal flaws in the indictment — you cannot prosecute a president for acts he took while in office; we don’t think they’ll be able to prove this was all purely campaign-related,” the source said.
The defense team will now ask for discovery and a briefing schedule to argue why the superseding indictment should be dismissed too, so in their view this case still won’t go forward before the election, the source said.
Trump’s challenge on immunity grounds led U.S. District Judge Tanya Chutkan to freeze the underlying case in December while he appealed. The case was returned to her court this month; the defense and the prosecution are scheduled to file a joint status report Friday laying out their proposed schedules for proceeding.
Any litigation on pending immunity questions must be settled before other action in the case, the Supreme Court ruling said. That could take multiple forms, from a public evidentiary hearing with witnesses or a fully on-paper process consisting of multiple rounds of briefings followed by written rulings from the judge.
Trump is also using the immunity ruling to fight his conviction on charges of falsifying business record in New York. His attorneys contend that the indictment in that case should be dismissed because the grand jury was presented with evidence of official acts — tweets and conversations with advisers — that shouldn’t have been considered.
A new grand jury brought the new indictment in the federal case. The slimmed-down allegations could also be a way for prosecutors to avoid extensive fights over evidence they were concerned wouldn’t be allowed because of the Supreme Court ruling.
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