Trump's new indictment is 9 pages shorter — there's a good reason for that
Analysis by Laura Italiano and Grace Eliza Goodwin
It's nine pages shorter — but far stronger.
Donald Trump's re-tooled election interference indictment, unveiled Tuesday by special counsel Jack Smith, proves that less really is more when it comes to charging a former president, a legal expert told Business Insider.
The previous indictment, which clocked in at 45 pages, had included what the US Supreme Court says is the kind of official-act evidence that can no longer be used in prosecuting presidents.
The replacement indictment — which uses the same font and spans 36 pages — removes references to Trump's presidential acts with surgical precision, said Michael Bachner, a former Manhattan prosecutor and frequent commentator on Trump's legal travails.
Both the previous and the new indictments charge Trump with the same federal counts of conspiracy and obstruction. But in the new indictment, it's Trump the 2020 presidential candidate, not Trump the former president, who is charged.
Gone are all references to Trump conferring with officials from his Justice Department as he clung to power in the final weeks of his administration, the kinds of interactions that the Supreme Court ruled can no longer be used in prosecuting presidents.
"It certainly was the only move he had," Bachner, now of Bachner & Associates in Manhattan, said of Smith.
"The first indictment was never going to pass Constitutional muster," he said. "So if Smith wants to proceed against Trump his only choice was to have a new indictment voted that eliminated the issues raised by the Supreme Court on immunity."
Bachner added, "What they did was eliminate all reference to Trump in his official capacity and bring charges specifically against Candidate Trump. They eliminated any conversations he would have had with the DOJ, specifically Jeffrey Clark, who he wanted to have appointed as his attorney general."
The nine-page cut removes references to emails and conversations surrounding this attempted appointment that can no longer be used against Trump. Bachner called this excised evidence "helpful but not crucial."
"It's still a strong case, because frankly much of what Trump is accused of doing here was done in his personal capacity as a candidate" in the 2020 election he lost to President Joe Biden, Bachner said.
Trevor Morrison, a constitutional law expert and professor at NYU, told Business Insider that it was "sensible" for Smith to try to "minimize the risk that Trump would be found to be immune from these charges."
But, he added, though the revised indictment is less susceptible to those risks than the original, its not entirely immunity-proof. That is, any judge could come along and say Trump still had total immunity.
"It makes clear that the prosecution's characterization of much of this conduct is that it is private and not official conduct," Morrison said. "But since we don't have a clear means of distinguishing between the two since the Supreme Court didn't provide one, it's still going to be up to Judge Chutkan in the first instance and then very probably the DC Circuit on appeal and perhaps once again, the Supreme Court, to tell us on which side of the line various of the allegations fall."
And the courts could argue that Trump's role as a candidate and his role as president are inextricably intertwined — that he was acting in both capacities simultaneously.
"Jack Smith's ability to prevent the court from reaching that conclusion is limited," Morrison said.
In refiling his indictment, Smith was smart to convene a new grand jury rather than re-submit the case to the original panel.
Now, there can be no argument that the grand jury was prejudiced against Trump by having heard banned official-act evidence during the first grand jury presentation, Bachner said.
And it's noteworthy that — even in media-crowded Washington — the second grand jury was able to meet for weeks and vote an indictment against Trump in absolute secrecy.
"Grand jury proceedings are secret by law, but it's not unusual in a case of this high profile for somebody to leak it," Bachner said, noting that witnesses and their attorneys are not bound by secrecy rules.
"But I'm not surprised," Bachner added, noting that the special counsel has been scrupulously circumspect. "Smith really believes in the integrity of this case, and that Trump's guilt or innocence should be determined not by a judge but by a jury."
Still, the new indictment doesn't guarantee that judges won't throw out the case before it ever reaches a jury.
"As a matter of the allegations, if we accept them as true, then I think Trump faces very serious criminal jeopardy if this case is allowed to continue," Morrison said. "But a whole lot of judges are likely to have to make a whole lot of follow-on decisions before we get anywhere near a trial. And of course, the outcome of the election itself could end up basically calling a halt to the entire case."
Trump pleaded not guilty to the previous election interference indictment, and on Tuesday blasted the new one on Truth Social as "an effort to resurrect a 'dead' Witch Hunt" and a "direct assault on Democracy."
