Special counsel Jack Smith's superseding indictment revised the charges against former President Donald Trump, CNN reported. Smith was forced to do so following the Supreme Court's decision granting presidential immunity.
Trump's attorneys argued that his conduct on Jan. 6, 2021, fell under the protection of his presidential duties. The Supreme Court agreed with Trump in a 6-3 ruling.
This meant that some charges Smith pursued would likely be negated upon appeal. To complicate matters, Chief Justice Roberts' majority opinion did not provide a roadmap for how Smith could successfully proceed, which meant he had to go back to the drawing board.
A new grand jury returned the new indictment Wednesday, which contains key revisions and additions to the charges. Smith has attempted to turn the focus to Trump's status as a political candidate during the unrest to skirt the immunity issue.
As Georgia State University constitutional lawyer Anthony Michael Kreis pointed out, Smith has pivoted to "trying to make a clean case for why this is indictable and why these indictable offenses all stem from conduct that Donald Trump did as a candidate and not as president in any formal or official capacity." This means that certain presidential briefings have been removed from Smith's case.
Also gone are references to Trump's conduct while the unrest occurred which would confirm his role as an official. During the breach of the U.S. Capitol by his supporters, Trump took meetings with presidential advisers who implored him to intervene.
Based on their recommendations, Trump posted a message to protesters on X, then Twitter, to "remain peaceful." Later that day, he posted a video message from the Rose Garden asking rioters to leave the building.
The new indictment no longer references those actions or a call Trump engaged in with then-House Minority Leader Kevin McCarthy during the unrest. Notably, prosecutors removed Trump's alleged comment from the outer Oval Office that "this is what happens when they try to steal an election." The comment fits neatly with their narrative, but the venue does not.
One portion that remains despite its ties to official proceedings is Trump's conversations with then-Vice President Mike Pence about holding off on certifying the votes. Smith has recast the conversations as those between Trump, the candidate, and Pence, his running mate, while downplaying their respective roles as president and vice president.
While Smith has reworked some of the previous charges, he has also added new information to find something that sticks. His revised indictment adds more background about the electoral vote certification process that he believes will help.
This is because the obstruction charge requires a threshold imposed by another Supreme Court ruling from a Jan. 6 defendant. As Reuters reported, obstruction of an official proceeding happens only if the defendant "impaired the availability or integrity" of records or documents in the proceedings.
It may be a stretch, but Smith is attempting to link Trump's conduct that day to an effort to hinder the use of certifying documents by Congress. Because staffers were forced off the Senate floor during the certification, they took documents with them.
Smith's theory dictates that if Trump was the impetus for them to move those documents, the obstruction charge could remain. It seems like a stretch, but Smith is desperate to salvage his case against Trump as the election draws nearer.
Smith is intent on prosecuting Trump no matter the obstacles. This case and the charges appear highly politicized, given the hoops Smith is willing to jump through to ensure there is something he can pin on the former president.
