WASHINGTON — Special counsel Jack Smith filed a superseding indictment against former President Donald Trump Tuesday in a bid to bolster one of two criminal cases against the Republican nominee following the Supreme Court’s landmark presidential immunity decision last month.
Trump, 78, remains charged with the same four counts unveiled last August in connection with his bid to overturn his 2020 election defeat by Joe Biden, but Smith’s team retooled some of their arguments to comply with the high court’s determination that the 45th president enjoys “absolute” immunity from prosecution for certain official acts.
“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,” Smith explained in a filing notice.
The indictment’s most significant update is the removal of descriptions pertaining to Trump’s engagement with former acting Assistant Attorney General Jeffrey Clark and accusations that Trump attempted to leverage the Justice Department to help him remain in power.
Two sources told The Post that Clark is not cooperating with Smith’s investigation, contrary to theories floated on social media after Tuesday’s indictment was filed.
Clark, who is charged alongside Trump in a separate election tampering case out of Georgia, pushed his bosses to sign on to a letter urging GOP legislators in battleground states to re-evaluate election results ahead of Biden’s inauguration, according to congressional testimony.
Trump lashed out at Smith in response to the revised indictment, re-upping his allegation that the special counsel was improperly appointed.
“In an effort to resurrect a ‘dead’ Witch Hunt in Washington, D.C., in an act of desperation, and in order to save face, the illegally appointed ‘Special Counsel’ Deranged Jack Smith, has brought a ridiculous new Indictment against me, which has all the problems of the old Indictment, and should be dismissed IMMEDIATELY,” Trump raged on Truth Social.
“This is merely an attempt to INTERFERE WITH THE ELECTION, and distract the American People from the catastrophes Kamala Harris has inflicted on our Nation, like the Border Invasion, Migrant Crime, Rampant Inflation, the threat of World War III, and more.”
The 45th president is charged with conspiracy to defraud the US, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, as well as conspiracy against rights.
The Supreme Court’s July 1 ruling meant that any trial of Trump is unlikely before the Nov. 5 election, as the nine justices left it to lower courts to decide what constitutes an “official act” by a sitting president — clearing the way for months or years of additional appeals.
In his majority opinion, Chief Justice John Roberts described a “presumption of immunity” for presidents, meaning that the burden is on Smith to prove that Trump is criminally liable.
Official vs private acts
The 36-page superseding indictment includes pared-down language about Trump’s knowledge of “the falsity of his election fraud claims.”
“The defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election,” prosecutors wrote in a new line to their indictment.
They also noted that while Trump “sometimes used his Twitter account to communicate with the public” about official actions, “he also regularly used it for personal purposes.”
As an example, the government argued, Trump used his social media account “to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President [Mike Pence] to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.”
Prosecutors also stressed that the ex-president’s Ellipse speech that preceded the ransacking of the Capitol by his supporters, was “at a privately-funded, privately organized political rally.”
Smith’s team argued against Trump’s immunity claim before the Supreme Court after two lower courts previously sided with the special counsel.
Trump’s outstanding criminal indictments have been in limbo for weeks.
Sentencing has yet to take place in the 34-count Manhattan hush-money case in which the former president was convicted this past May, the 10-count Georgia case is mired in pre-trial motions, and a 40-count indictment filed by Smith on charges Trump illegally hoarded national security information was tossed out last month by a South Florida federal judge, prompting an appeal by Smith.
The 78-year-old has denied wrongdoing and pleaded not guilty to all criminal charges pending against him.
