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Blogs Published August 29, 2024

Understanding the Superseding Indictment Against Former President Trump in the DOJ’s Election Interference Case

Issue Areas
  • Accountability
In This Resource

Published August 29, 2024

Jack Smith, the Justice Department special counsel, this week issued a revised version of the indictment accusing former President Trump of four federal crimes for plotting to overturn the 2020 election.

The revision, known as a superseding indictment, follows the Supreme Court’s ruling last month in Trump v. United States, which held that presidents are substantially shielded from criminal prosecution for conduct related to their “official acts.”

This new indictment was based on evidence presented to a new grand jury following that ruling.

Key things to know about the revised indictment
  • All four criminal counts against Trump remain in place. Smith is pressing ahead with his full slate of charges, including a charge of obstructing the counting of electoral votes in Congress on Jan. 6, 2021. (In a separate case, Fischer v. United States, the Supreme Court ruled that the government improperly used that charge against some Jan. 6 rioters.)
  • Smith edited the indictment to reflect the Supreme Court’s decision on immunity. He removed evidence that he saw as covered by the immunity ruling. The Trump v. United States decision held that presidents were shielded from being charged for crimes related to their official acts. It also held that evidence of official acts could not be used for other charges.
  • References to Trump’s interactions with the Justice Department have been removed. That change was explicitly required by the Supreme Court in its ruling on immunity. Jeffrey Clark, the former acting attorney general, was one of six unindicted co-conspirators named in the original indictment. References to him are removed in the revision.
  • Smith takes the view that much of Trump’s behavior fell under his role as a candidate, not as president. References to Trump’s speech at the Ellipse on Jan. 6 remain in the indictment, as do many of his tweets made in a personal capacity. So do Trump’s conversations with state leaders in which he tried to get them to throw out legitimate election results and award him electoral votes that he had not won.
  • Much of the evidence relating to Trump’s interactions with Vice President Mike Pence remains in the indictment. The Supreme Court indicated that interactions between a president and vice president in those roles would be covered by immunity. But Smith takes the position that Pence, in connection with the electoral vote count, was functioning in his ceremonial role as president of the Senate. Smith also emphasized that the president has no role in electoral vote counting, and that some of Trump’s interactions with Pence in relation to the vote count were in Trump’s role as a candidate.
What’s next
  • Trump will be arraigned on the revised indictment. He will not have to appear in person.
  • The parties will file papers by Friday, Aug. 30, about next steps in the case. They’ll meet with Judge Tanya Chutkan on Sept. 5. No trial date has been set.
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