Anna Bower, Matt Gluck, Quinta Jurecic, Natalie K. Orpett, and Benjamin Wittes write:

On Tuesday, Special Counsel Jack Smith unveiled a superseding indictment of Donald Trump in Washington, D.C. for his effort to overturn the 2020 election. Trump, for his part, didn’t wait long to weigh in. Posting on Truth Social, he declared the indictment “ridiculous” and part of “the single greatest sabotage of our Democracy in History.” The former president seemed particularly insulted that the grand jury handed up a superseding indictment “immediately after our Supreme Court Victory on Immunity and more.” The action, he wrote, was “shocking.”

The decision to file a superseding indictment was, in fact, something less than shocking. The new indictment was clearly fashioned by Smith’s team precisely in response to that same Supreme Court ruling finding broad presidential immunity from criminal prosecution—and specifically to bring it into compliance with the high court’s ruling. Smith has stripped out portions of the original indictment that were newly and definitively forbidden under the Court’s decision, and he tweaked others, seeking to streamline the charges and make them viable to move forward under the ruling so that the case itself can proceed. The Supreme Court hasn’t prohibited prosecution altogether—and Smith is proceeding accordingly.

“Smith rewrote the exact same case in an effort to circumvent the Supreme Court Decision,” Trump complained. He’s not entirely wrong—although he would have done well to replace the word “circumvent” with “follow” or “comply with.” The Court’s instructions were opaque, leaving U.S. District Judge Tanya Chutkan with a difficult task in sorting through what was left of the prosecution on remand. With this superseding indictment, Smith is not just discarding the elements of the case that the Court has ruled out, but is also offering his own interpretation of Chief Justice John Roberts’s reasoning.

Trump is, however, correct that the superseding indictment is actually not that different from the original one. In fact, most of the language is the same. And there’s very little new here: Smith appears to have chosen to proceed with less of what he had, instead of trying to supplement it with many additional facts or arguments. In a notice filed with the court alongside the superseding indictment, the special counsel indicates that the indictment “was presented to a new grand jury that had not previously heard evidence in this case”—confirming that Smith was able to secure the grand jurors’ votes for these charges against Trump even with a slimmer folder of evidence on hand. [Continue reading…]