In the wake of the Supreme Court’s stunning decision on presidential immunity, legal experts had a variety of predictions of what would happen next in special counsel Jack Smith’s federal election interference case.
But once Smith’s office advised Washington, D.C., federal judge Tanya Chutkan earlier this month that it needed more time to “assess the new precedent … including through consultation with other Department of Justice components,” I realized one reason Smith could need more time was to supersede, or replace, his own indictment to resolve the Supreme Court’s clearest concerns. And on Tuesday, Smith did exactly that.
Others — including my colleagues Jordan Rubin and Hayes Brown — have written about the changes in the new indictment, both big and small, and what’s likely to happen next in the litigation.
But assuming the stripped-down indictment can survive both judicial review and November’s election (if Trump wins, we can assume his Department of Justice will put an end to his federal criminal cases), what really interests me is Smith’s removal from the indictment of multiple alleged conversations between Trump and executive branch officials and how those deletions have complicated his case at trial.
Most damning evidence removed
The charges against Trump — all four of which remain — necessitate showing not only that Trump falsely claimed there was outcome-determinative fraud in the 2020 presidential election and that he had won, but that he knew these claims were false at the time he made them and conspired to change the election outcome.
The original indictment alleged that the sources of Trump’s knowledge included senior Department of Justice leaders, including then-Attorney General Bill Barr and his successor, then-acting Attorney General Jeffrey Rosen, as well as senior White House lawyers, namely then-White House counsel Pat Cipollone and his deputy Pat Philbin. That document quotes Philbin as having told Trump, “[T]here is no world, there is no option in which you do not leave the White House [o]n January 20th.”
In the new indictment, however, Smith has eliminated any and all references to conversations in which DOJ leaders, White House staff, and agencies within the intelligence community allegedly informed Trump that one or more claims about voter fraud were unproven and/or false — or simply that he had lost the election period.
The superseding indictment is a reflection of a weird, dual reality for Smith and his team: In order to save their case, they also had to jettison some of their best proof.
It’s no secret why Smith did this. Under the Supreme Court’s immunity decision last month, Trump’s communications with executive branch aides are either part of his core constitutional powers, as the court held with respect to his interactions with DOJ leaders, or at the very least, within the outer perimeter of his official duties so that they are presumably immune both from prosecution and as evidence even as to his unofficial conduct.
But now, the case won’t include some of what seemed to be the most damning proof that Trump knew he lost.
The conversations through which Barr, Rosen and Rosen’s then-acting deputy, Rich Donoghue, disabused Trump of his false claim that votes cast through voting machines had been “switched” from him to Biden in multiple, contested states? Gone.
The time Barr also told Trump there was no evidence of a “suspicious vote dump” in Detroit? Gone.
How about when Rosen and Donoghue separately told Trump that the claim there had been 200,000-plus more votes than voters in Pennsylvania was also untrue? Cut.
Or what of Trump telling then-Chairman of the Joint Chiefs Gen. Mark Milley in early January 2021 that “it’s too late for us” to take action on an “overseas national security issue” and they should “give that to the next guy?” Nowhere to be found.
Then-Director of National Intelligence John Ratcliffe’s assuring Trump that there was no outcome-determinative foreign interference in the election? Like it never happened.
Can this new indictment survive?
The superseding indictment is a reflection of a weird, dual reality for Smith and his team: In order to save their case, they also had to jettison some of their best proof. The question now is whether what’s left is powerful enough to prevail.
My guess is yes, in part because some of the most important witnesses are still important in GOP politics and therefore, all the more credible if they tell the truth. Indeed, without testimony from official Trump World, those who directly communicated with Trump about his failure to win come from two camps: state officials who refused to do his bidding and his own campaign staff. (The Supreme Court’s opinion suggests Trump’s discussions with both state officials and his campaign staff constitute unofficial, personal acts that do not qualify for immunity.)
Consider, for example, two events that the new indictment alleges went down on Dec. 8, 2020.
First, the indictment notes that a “Senior Campaign Advisor — who spoke with the Defendant on a daily basis and had informed him on multiple occasions that various fraud claims were untrue,” dismissively described those fraud claims in an email as “just conspiracy shit beamed down from the mothership” that unsurprisingly had resulted in more than 30 court losses to date. Those details are hardly new, but they could carry even greater weight going forward given their source: once and current Trump adviser Jason Miller, who is perhaps even more prominent within the inner circle today than he was in 2020.
The new indictment also alleges that Trump called Georgia Attorney General Chris Carr and asked him to join the so-called “original jurisdiction” lawsuit that Texas had filed in the Supreme Court. But Carr declined, telling Trump, according to the indictment, “that officials had investigated various claims of election fraud in the state and were not seeing evidence to support them.” And Carr, who defeated a Trump-endorsed opponent to win re-election in 2022, remains unbowed, at least so far, refusing to reopen an investigation of the 2020 election in Georgia’s Fulton County despite a directive from the Georgia Election Board.
I can’t imagine Miller or Carr would necessarily welcome testifying in a Trump trial. But I also can’t envision the Supreme Court ruling their testimony is ultimately off-limits under the contours of the immunity decision. The special counsel and those weighing in at the Justice Department understand this. And even as they recover from their Supreme Court loss, they are playing the long game.
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