Basically, same charges, but just changes up the facts (removed some) in light of the immunity ruling. All the interactions with the DOJ (core functions/immune) type facts were removed.
If it’s a superseding indictment, might it be assigned to a different judge? Or is he stuck with Cannon?
This is the Judge Chutkan Jan 6th case, not the documents case. But for what it’s worth, I had the same hope too.
Oh, right, you’re correct. I was just reading the linked article and discovered that.
ETA: I wonder if he’ll go back to a grand jury and get a superseding indictment for the documents case, or whether that one depends on whether the whole special counsel appointment controversy prevents that.
According to Ben Meiselas (“MediasTouch”), the Indictment came from a new Grand Jury.
While one can argue all day long about the political leanings of the DC jury pool, it strikes me as significant that another group of citizens thought there was enough meat (on the newly-trimmed bone) to Indict this guy.
Again.
ETA: Meiselas also notes that Jack Smith did not walk away from his charge of Obstruction of an Official Proceeding, despite the recent SCOTUS decision that left this as an open question.
As I understand it, the new indictment also leaves out anything that falls under the Supreme Court’s new “Trump is God” mandate (which would have included anything at/in/around the White House and associated characters who worked there at the time) and it was still good enough for the Grand Jury. I know, ham sandwiches and all but still.
I was surprised that the new indictment doesn’t contain any rationale for why it supersedes the previous one. Are such indictments not required to explain why the previous indictment should be disregarded, and the differences between the two? Or is this information contained in some other document that precedes or accompanies the superseding indictment?
I mean, in this case we all know that the superseding indictment arises from the well-publicized Supreme Court’s recent immunity ruling, even though there’s no mention of this in the document itself. But in the general case, wouldn’t the court require an explanation and perhaps even advance notice/permission?
No. Not in the indictment itself. I thought maybe there would be a motion for leave to file the new indictment, but I just scanned the criminal rules and I don’t see any requirement for filing a motion to allow a superseding indictment.
So when and where is the explanation provided? Or do courts just routinely accept superseding indictments without question, and the judge and defendants spend a lot of time laboriously comparing the new and old ones to find the differences?
Not my specialty (It’s been 20 years or more since I handled a criminal case in Federal Court) but I’m not sure they need to provide one. The new Grand Jury returns the new indictment and that’s that. I’m sure the defense will file a bs motion to dismiss it, and perhaps at that time the Government has to defend and explain their actions. I guess we’ll all find out over the next month or two.
Unfortunately, the SCOTUS immunity ruling says that basically anything that might have some plausible connection to an official presidential act might be immune, didn’t resolve exactly where the boundary of that is, left it to the lower court to make a decision on that before the SCTOUS comes in and likely makes a subsequent ruling on those specifics, and in any case says that ex presidents have a presumption of immunity until the prosecution proves that they shouldn’t meet the (not yet specified) immunity standard.
So at a minimum it’s going to take a long time to even get an actual precedent on what specifically ex presidents can be immune for, and it’s going to take a lot of time even after this precedent becomes clear to clear the hurdles for any individual case, plus the SCOTUS could still come back and decide that doing something like personally calling up a state election official would fall into immunity.
I’m open to being surprised but it seems like at this point prosecuting an ex president is going to be like getting out of hotel california.
Here’s a better breakdown of exactly what was changed: The Superseding Trump Indictment Is about Obstruction as Much as Immunity
I went through everything that had been added or removed from the superseding indictment against Trump…The changes include the following:
- Removal of everything having to do with Jeffrey Clark
- Removal of everything describing government officials telling Trump he was nuts (such as Bill Barr explaining that he had lost Michigan in Kent County, not Wayne, where he was complaining)
- Removal of things (including Tweets and Trump’s failure to do anything as the Capitol was attacked) that took place in the Oval Office
- Addition of language clarifying that all the remaining co-conspirators (Rudy Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, and — probably — Boris Epshteyn) were private lawyers, not government lawyers
- Tweaked descriptions of Trump and Mike Pence to emphasize they were candidates who happened to be the incumbent
- New language about the treatment of the electoral certificates
And this is what the author Emptywheel makes of the changes in light of the Immunity ruling:
If Jack Smith succeeds in preserving this indictment — and that’s still a big if — then he will do so by making the argument that Trump, in his role as candidate, had the intention of using a mob to target the guy who played the ceremonial role of counting the vote. It would result in a collection of judicial holdings that presidential candidate Donald Trump had a mob target his Vice President in an attempt to remain President unlawfully.
Sure, John Roberts and his mob might yet try to overturn that. John Roberts might endorse the idea that presidential candidates, so long as they are the incumbent, can kill members of Congress to stay in power.
But doing so would clarify the absurdity of such a ruling.
I love Emptywheel. She’s dynamite. Thanks for posting her (as usual) great analysis.
Why would there be a need for a comparison? The new one is the only one that matters.
Though that’s (apparently) legally correct, I heard a talking head raise a cogent political point.
The new Indictment is a story in itself. It also resurrects the attempted overthrow of our legitimately elected government in prime election time.
While “Democracy” isn’t the #1 issue to every voter, it’s also been pushed ‘below the fold’ for quite a while now. Shiny objects. Recency. All that.
But the new Indictment gives journalists a chance to talk about both what is different (in a way that Jack Smith can no longer raise as evidence in Court) between the Indictments and to reiterate to the voting public just what kind of incalculable harm the conservative SCOTUS may well have done, and the incalculable harm that Trump nearly succeeded in doing.
I think it’s good to get 1/6 back in the headlines in the next nine-ish weeks. I also think Smith’s Superceding Indictment gives the press an inarguable hook.
ETA: @Aspenglow ? Any thoughts about adding a second Indictment date to the thread title ? 
Good idea. I’ll do that. Thanks.
I agree that she’s sharp. I think she also has a horrible tendency to allude to things that are very esoteric or forgotten for the median twitter follower, and then not explain things.
This would be a very hard sell in a trial, and especially if you’re expecting the case to get reviewed by the Supreme Court (which is a given).
The far better argument and the one that’s a lot more likely to survive review would be the one that the Colorado Supreme Court used, when reviewing the question of whether Trump should be excluded from the ballot due under the 14th Amendment. They accepted that the riots happened on their own and that there’s no particular evidence that Trump had any intent to cause it to occur. I do believe that the weight of evidence supports that outcome.
However, they said that once it did start, he joined up with it and withheld his powers to call off the riot in preference of calling up members of Congress to pressure them to change the results of the election.
I’d also expect that Smith focuses more on the false electors scheme which is far better documented and far better proved to have been undertaken with criminal intent. If you can get the riots then, by all means, it’s a nice get. But it really shouldn’t be the central element and all attempts to make it so have been fairly Quixotian.
They weren’t until the SCOTUS invented new law to cover them. Which is why the SCOTUS invented new law to cover them.
Trump’s “Secede now!” tweets have more evidentiary backing of an intent to overthrow the nation than anything he said or did relative to Jan 6. The guy’s as skeezy a puddle of poo as you could ever want but he’s completely correct that phrases like, “Let’s fight!”, “We’re going to destroy them!”, etc. are completely common and uninteresting in political rallies. Attempts to read it past that are impossible to interpret as anything but a partisan need by the left for it to be so.
The secede tweets, on the other hand, are precise attacks on the Presidential oath of office to preserve the union and yet were scarcely noted at the time, except in passing. It’s preposterous that he wasn’t drawn up for impeachment that day and the document sent over to the Senate on the next.
It’s not an insignificant part of Trump’s ability to escape accountability for things all of this time, that his opponents have largely focused on fluff and nonsense instead of a lot of the truly grave things that he did.