It is nine pages shorter – but much stronger.
Donald Trump’s revised indictment for election interference, presented on Tuesday by special counsel Jack Smith, proves that less real Is more when it comes to indicting a former president, a legal expert told Business Insider.
According to the US Supreme Court, the previous indictment, which ran to 45 pages, contained evidence that was recorded in official records and therefore could no longer be used in the prosecution of presidents.
The new indictment – which is written in the same font and runs to 36 pages – has been surgically removed from all references to Trump’s official actions, said Michael Bachner, a former Manhattan prosecutor who frequently comments on Trump’s legal troubles.
Both the previous and new indictments charge Trump with the same federal charges: conspiracy and obstruction of justice. However, the new indictment charges Trump, the 2020 presidential candidate, not Trump, the former president.
All evidence that Trump consulted with Justice Department officials in his power struggle during the final weeks of his term has disappeared – a type of interaction that, according to a Supreme Court ruling, can no longer be used to prosecute presidents.
“It was certainly his only option,” Bachner, now with Bachner & Associates in Manhattan, said of Smith.
“The first impeachment would not have met constitutional standards,” he said. “So if Smith wants to go after Trump, his only choice is to pass a new impeachment that addresses the immunity questions raised by the Supreme Court.”
Bachner added: “They removed all references to Trump in his official capacity and brought charges specifically against candidate Trump. They removed any conversations he may have had with the Justice Department, particularly with Jeffrey Clark, whom he wanted to appoint as his attorney general.”
The nine-page excerpt removes references to emails and conversations surrounding the nomination attempt that can no longer be used against Trump. Bachner called the redacted evidence “helpful but not decisive.”
“It’s still a strong argument because, frankly, Trump did a lot of what he’s accused of here in his personal capacity as a candidate,” Bachner said during the 2020 election, which he lost to President Joe Biden.
Trevor Morrison, a constitutional law expert and professor at New York University, told Business Insider that it was “sensible” of Smith to try to “minimize the risk that Trump turns out to be immune to these allegations.”
But he added that while the revised indictment is less vulnerable to those risks than the original one, it is still not completely immunity-proof. That is, any judge could come along and claim that Trump still enjoys total immunity.
“It makes clear that the prosecution is characterizing much of this conduct as private rather than official,” Morrison said. “But since we have no clear way to distinguish between the two, since the Supreme Court has provided no such way, it will still be up to Judge Chutkan in the first instance and then very likely the D.C. Circuit Court of Appeals and perhaps again the Supreme Court to tell us which side of the line the various allegations lie on.”
And the courts could argue that Trump’s role as a candidate and his role as president were inextricably linked – that is, that he acted in both capacities simultaneously.
“Jack Smith’s ability to dissuade the court from that conclusion is limited,” Morrison said.
In re-filing his indictment, Smith was wise enough to convene a new grand jury rather than re-submit the case to the original panel.
It can no longer be disputed that the grand jury was biased against Trump because it heard prohibited evidence in the form of official acts during the first grand jury hearing, Bachner said.
And it is remarkable that the second grand jury was able to meet for weeks in media-saturated Washington and vote on an indictment against Trump in absolute secrecy.
“Grand jury proceedings are secret by law, but it’s not unusual in such a high-profile case for someone to leak something,” Bachner said, pointing out that witnesses and their lawyers are not bound by the secrecy rules.
“But that doesn’t surprise me,” Bachner added, noting that the special counsel had been extremely cautious. “Smith truly believes in the integrity of this case and that Trump’s guilt or innocence should be determined by a jury, not a judge.”
Still, the new charges are no guarantee that the judges won’t dismiss the case before it even gets to a jury.
“If we accept the allegations as true, then I believe Trump will face serious criminal charges if this case goes forward,” Morrison said. “But before it even goes to trial, there are probably a whole series of other judges that will have to make decisions. And of course, the outcome of the election itself could lead to the whole case essentially being stopped.”
Trump pleaded not guilty to the previous election interference charge and sharply criticized the new charges on Truth Social on Tuesday as an “attempt to revive a ‘dead’ witch hunt” and a “direct attack on democracy.”
This story has been updated with additional commentary.
