Trump charged again in federal election interference case after Supreme Court immunity ruling

WASHINGTON (NBC) — Former President Donald Trump has been impeached once again for his efforts to overturn his loss in the 2020 presidential election, an effort that culminated in the January 6 attack on the US Capitol.

A federal grand jury on Tuesday returned a superseding indictment charging Trump with the same four counts he faced in the original indictment last August: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding, and conspiracy to violate human rights.

The new indictment follows the Supreme Court’s decision on presidential immunity last month, which barred the government from using certain “official acts” Trump performed in his role as president in his prosecution.

“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 rulings and remand instructions,” special counsel Jack Smith’s office said in Tuesday’s filing.

In a series of social media posts, Trump slammed the new indictment as “shocking” and “a direct attack on democracy.” “The case is all about ‘Conspiracy to Obstruct the 2020 Presidential Election,’ when they are the ones obstructing the election, not me,” he wrote. His campaign also sent out a fundraising email within two hours of the filing, saying Trump had “just been impeached again” and urging supporters to “stand with Trump” by donating.

While the charges are the same, some of the evidence has been narrowed in light of the Supreme Court ruling, which expanded what could be considered official acts.

Sections detailing Trump’s conversations with Justice Department officials in which he allegedly asked them to back up his false claims of election fraud have been redacted from the superseding indictment. Former Justice Department official Jeffrey Clark, who backed Trump’s claims and was nearly named acting attorney general, has been removed as an unindicted co-conspirator. Prosecutors also redacted references to advice Trump received from direct Oval Office advisers such as White House counsel Pat Cipollone or conversations he had with them, and references to some of his tweets from that period.

The new indictment also singles out Vice President Mike Pence’s role as presiding officer of the Senate on the day of the electoral vote count, Jan. 6, 2021, in an apparent nod to the Supreme Court’s concerns about whether evidence from the Trump campaign should be allowed to get Pence to intervene in the count. The Supreme Court’s ruling said, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” and therefore there is a “presumption of immunity” around their conversations. But the ruling also noted that Pence’s responsibility to “‘preside over the Senate’ is not ‘a function of the ‘executive branch.’”

Other parts of the new indictment are the same, with prosecutors again taking the position that Trump did not actually believe the lies he was spreading in the wake of his 2020 election loss and that he knew they were, in fact, lies.

“These claims were unsubstantiated, factually unreasonable, and constantly changing, and defendant and his co-conspirators repeated them even after they were publicly refuted,” the indictment says. “These claims were false, and defendant knew they were false.”

While many of the January 6 defendants have told courts they now acknowledge they were duped and regret being “gullible” enough to fall for the misinformation about the 2020 election that Trump promoted, Trump himself has never publicly admitted that he realizes he was spreading misinformation.

Trump’s mental state will be a major issue in a future trial, which will not take place before Election Day and could be messy if he wins. If Trump emerges victorious, he or his appointees will almost certainly end the case, as well as other Jan. 6 prosecutions: Trump has referred to the Capitol rioters as “hostages” and “incredible patriots,” and has indicated that he would pardon many, if not all, of those charged on Jan. 6. (Trump said he would “absolutely” consider pardoning all of the Jan. 6 criminal defendants, but his campaign has said pardons would be granted on a case-by-case basis.)

Trump’s legal team had prepared for the possibility of a new impeachment, according to a source familiar with the defense team’s thinking, but believes the revised indictment still contains “fatal” flaws under the Supreme Court’s reasoning.

“We don’t think they can prove that this was all purely campaign-related,” the source added, suggesting that the timing is playing in the former president’s favor.

The defense team is expected to request a schedule of briefings to argue why the superseding indictment should also be dismissed, a process that could drag on for months.

Trump’s original challenge on immunity grounds prompted U.S. District Judge Tanya Chutkan to freeze the underlying case in December while he appealed. The case was returned to her court this month; the defense and prosecution are scheduled to file a joint brief on Friday outlining their proposed timetable for the proceedings.

The Supreme Court’s ruling states that any litigation over pending immunity issues must be resolved before any further action is taken in the case. This could take multiple forms, from a public hearing with witnesses to a fully written process consisting of several rounds of briefings followed by written decisions from the judge.

Trump is also using the immunity ruling to fight his conviction on charges of falsifying business records in New York. His lawyers argue that the indictment in that case should be dismissed because the grand jury received evidence of official acts — tweets and conversations with aides — that should not have been considered.

A new grand jury returned the new indictment in the federal case. The reduced indictments could also be a way for prosecutors to avoid lengthy fights over evidence that they say would not be allowed because of the Supreme Court ruling.