Trump plans to keep challenging January 6 charges after new indictment
Donald Trump is expected to continue to battle against criminal charges of trying to overturn the 2020 election by challenging further parts of the revised indictment that removed allegations the US supreme court found were subject to immunity.
The superseding indictment filed on Tuesday by special counsel prosecutors mainly removed allegations about Trump’s efforts to use the justice department to obstruct the peaceful transfer of power and reframed the narrative to say Trump was being charged in his capacity as a candidate.
The document retains the same four criminal conspiracy statutes against Trump that were originally filed last summer. But portions of the new indictment were rewritten to emphasize that Trump was not acting in his official capacity during his efforts to try to overturn the election.
Trump’s lawyers see the changes as minimal and will seek to pare back the charges further, according to people familiar with the matter, because they consider large parts of what remains in the updated indictment to be presumptively immune conduct that the judge needs to resolve.
Trump’s lawyers are expected to argue it can all be litigated before the presiding US district judge, Tanya Chutkan, on legal arguments alone – as the Guardian previously reported – similar to disputes arising with so-called speech or debate clause protections for members of Congress, it is understood.
There are no immediate consequences of the special counsel Jack Smith getting a superseding indictment in the case. Trump still plans to initiate new litigation, which will be appealed to the US court of appeals for the DC circuit, and any trial would not happen before the November election.
Meanwhile, Trump’s legal team does not foresee “mini trial”-like hearings because it argues what constitutes an official act is a legal determination up to the courts to decide, it is understood. The special counsel appears to be in agreement on this, according to justice department sources.
The Trump lawyers see the current situation as not requiring evidentiary hearings with witnesses as was the case with the former Trump chief of staff Mark Meadows – when he tried to remove his Fulton county case to federal court – because the circumstances are different.
In the Trump lawyers’ eyes, that was about whether the conditions of the federal officer removal statute were satisfied; here, they see it as a question of deciding the contours of a new legal standard equivalent to a privilege protection.
The ultimate decision remains with Chutkan over the process to decide whether more of the evidence or allegations need to be suppressed. The judge could opt to hold a series of fact-finding evidentiary hearings even if both sides are opposed to that route.
after newsletter promotion
The 2020 election interference case is returning to life after Trump succeeded in obtaining repeated delays, including by having the supreme court hear his immunity claim and freezing proceedings while it considered the matter.
The delay strategy has been aimed at pushing the cases until after the November election, in the hope that Trump would be re-elected and then appoint as attorney general a loyalist who would drop the charges.