WASHINGTON—Donald Trump has been indicted all over again, by Justice Department Special Counsel Jack Smith, for forcibly trying to overthrow the presidential election almost four years ago, finishing by ordering and aiding the Trumpite invasion and insurrection at the U.S. Capitol on Jan. 6, 2021.
That’s because when Trump made his claims of vote fraud and incited the invaders with them, the claims “were false and he knew they were false,” the indictment by a D.C. grand jury, directed by Smith, says.
The new indictment concentrates on when Trump incited the invaders at the pre-invasion rally that day on the Ellipse just south of the White House. That rally was a campaign event, Smith’s new indictment declares, not an official act. So Trump’s speech there can be used as evidence of his conspiracies to overthrow the election. He was acting as a candidate, not as a president with the immunity granted by the Supreme Court whose horrific ruling in that regard is actually itself unconstitutional.
The indictment repeats the four criminal counts Smith lodged in his original case against convicted felon and former President Trump but with changes to the evidence in back of its charges. Gone is some evidence that would fall under the “official functions” of the presidency.
And the new indictment repeatedly refers to Trump as a private citizen when he was running for re-election, not as president. That leaves him open to criminal prosecution.
The indictment is important because it lands Trump right back in court again. It provides a roadmap for U.S. District Judge Tanya Chutkan, who has had to delay the January 6 case for months. She must sift through the evidence and decide what Smith can present in court and what—because of the perpetual immunity from criminal prosecution for official acts Trump now has—Smith can’t.
But delays in all the courts, engineered by Trump’s legal team, play into Trump’s real strategy of stall-stall-stall until after the November election. Then, if he wins, he can appoint toadies to the Justice Department to fire Smith and go to federal courts in D.C. and in Florida and withdraw the two U.S. cases against him. Another, in Fulton County, Ga., Circuit Court, stands. It’s delayed, too.
That would be a perversion of justice, legal scholars say—which makes it even more important for voters to defeat Trump at the ballot box this fall.
Smith is trying Trump in the U.S. District Court for Southern Florida on charges of illegally stealing top-secret papers from the White House and stashing them at his Mar-a-Lago estate, where people without security clearance could see and read them. One is a Pentagon war plan to invade Iran.
Had to re-tailor the indictment
Smith had to re-tailor his indictment to meet the U.S. Supreme Court’s ruling giving Trump perpetual immunity from federal criminal prosecution for official acts. That meant Smith had to delete some evidence.
The Supreme Court, in its decision on Trump’s case claiming total immunity from criminal prosecution forever, said he can never be indicted for official acts, even out of office. But the justices said Trump can still be indicted for personal acts, and Smith’s new indictment states clearly that Trump’s efforts to keep himself in power—up to and including the invasion and insurrection—were personal, to further his reign in the White House.
The new indictment places a lot more weight on Trump demanding the insurrectionists descend upon D.C. to obstruct the official electoral vote count that confirmed Democrat Joe Biden won the presidency.
The count was scheduled for that day, and Trump ordered the invaders to march on the Capitol to stop it. He promised to lead them, but the Secret Service said it would be too risky. Trump tried to wrestle the steering wheel of his armored SUV away from the Secret Service driver so he could lead them, but lost.
The new indictment also emphasizes Trump’s use of his Twitter/X account to incite the insurrection. But it eliminates many of the incendiary tweets he sent egging them on. One that was not eliminated: “Come to Washington. Will be wild!”
The new indictment also puts more emphasis and reveals more detail about Trump’s pressuring state officials in Arizona, Georgia, Michigan, Nevada, Wisconsin, New Mexico, and Pennsylvania to certify fraudulent electoral votes for him, not Biden. Even some of the fake electors Trump recruited for one of his conspiracies were legally dubious about what the then-president and his co-conspirators demanded.
Biden carried all seven swing states. They provided his Electoral College victory margin over Trump.
The Supreme Court, Smith said, did not give Trump immunity from those criminal charges, because they were campaign-related, as were the acts he used to keep himself in power. Those acts notably included his speech to the Trumpites just before they invaded the Capitol that January day.
- “The defendant [Trump] perpetrated three criminal conspiracies,” to keep himself in power even though he lost the election, the new indictment says. The first was “a conspiracy to defraud the United States by using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful government function” of counting and certifying the electoral votes.
- The second Trump conspiracy was “to corruptly obstruct and impede” the January 6 official “congressional proceeding”—the actual electoral vote count—“in violation of the law.”
- And the third, just as in the original indictment, was “a conspiracy against the right to vote and to have one’s vote counted,” again according to the law governing federal elections.
“Each of these conspiracies—which built on the widespread distrust the defendant was creating through pervasive and destabilizing lies about election fraud—targeted a bedrock function of the federal government: The process of collecting, counting and certifying the presidential election.”
New indictment drops one co-conspirator
Besides changing some details of the evidence behind the January 6 case, the new indictment drops one co-conspirator, former Assistant Attorney General Jeffrey Clark. He agreed to one Trump election fraud plan after Trump said Clark should become Acting Attorney General. Trump backtracked after all other top Justice Department officials threatened to quit on the spot.
Naming Clark as AG was a Trump “official act.” So was Trump’s refusal to accede to then-House Speaker Kevin McCarthy’s request to call the invaders off. Trying to overthrow the election wasn’t.
“On the pretext of certain baseless fraud claims, the defendant”—Trump—“pushed officials in certain states to ignore the popular vote, disenfranchise millions of voters, dismiss legitimate electors, and ultimately cause the ascertainment of and voting by illegitimate electors in favor of the defendant,” the indictment explains.
The new indictment keeps and expands on, Trump’s prior testy—and infamous—telephone conversation with Georgia Secretary of State Brad Raffensperger. Trump ordered the secretary, a Republican and the state’s top elections official, to “find” 11,780 more popular votes so Trump could carry Georgia’s 16 electoral votes by one ballot. Raffensperger refused, even after Trump threatened him and his general counsel “with criminal prosecution if they failed to find fraud as he demanded.”
Trump told Raffensperger his demand, adding “It’s more illegal for you than it is for them” referring to two Black Georgian election workers whom Trump accused of ballot box fraud during the phone call. “You know what they did and you’re not reporting it. And you can’t let that happen. That’s a criminal offense and it’s a big risk to you and your lawyer.”
The new indictment also reveals that a month before Trump called Raffensperger, he pressured Georgia’s Attorney General, Republican Chris Carr, into joining the lawsuit led by Texas’s far-right Trumpite AG, Ken Paxton, to overturn the election in other swing states, notably Pennsylvania.
Paxton sued to get election returns from those states Biden carried thrown out, claiming vote fraud in them disenfranchised Texans. His real motive may have been racial. Like Trump, Paxton hates people of color—and Biden carried Pennsylvania due to a heavy turnout in Philadelphia, which has a high share of Black voters. Carr refused to join Paxton’s suit, and federal courts threw it out for lack of evidence and lack of standing to bring it.
The new indictment also says Trump tried seven times to get his Vice President, Mike Pence, to knuckle under and reject electoral votes from contested states where Trump—falsely–claimed fraud occurred. Pence, as the Senate’s presiding officer, kept repeating the Constitution gives the VP a purely ceremonial role in the ballot count, and can’t override the states’ votes. Pence also made the stand public, angering the invaders.
Even before then, Trump grew so threatening, the indictment says, that Pence’s chief of staff sought added Secret Service protection for his boss.
In the High Court’s ruling, Chief Justice John Roberts wrote that Trump’s interactions with Pence could “presumptively” be official acts, which means Trump couldn’t be prosecuted. But the Chief Justice left the door open to Smith to prove that they weren’t, and Smith kept them—and expanded their detail—in the new indictment.
The new indictment was the second legal setback at Smith’s hands against Trump in two days. On August 26, Smith appealed the decision of U.S. District Judge Aileen Cannon in West Palm Beach, Fla., to throw out the federal case against Trump for stealing secret and classified documents from the White House when he left and stashing them in the shower or scattering them on the floor at his Mar-a-Lago estate.
Judge Cannon said Smith was named Special Counsel illegally, without Senate confirmation. Smith said otherwise to the U.S. Court of Appeals in Atlanta, asking them to reinstate the case. “As expected, Jack Smith appeals Judge Cannon’s decision to throw out Trump Mar-a-Lago documents case. He should win!” former Watergate Deputy Prosecutor Jill Wine-Banks tweeted.
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