What Changed In The New Indictment of President Trump -- And What The Changes Might Mean

Special Counsel (Allegedly) Smith as abaondoned the idea of having a trial before the election -- ow he just pumps out useful PR pieces for the Harris Campaign.

Just what is a “Superseding Indictment” anyway?

It is a charging document returned and filed with the Court by the Grand Jury in a case where they have previously filed an Indictment. Sometimes there will be Second and Third Superseding Indictments. The prosecutor might add defendants to the case, or add new charges that were not part of the prior indictment. Sometimes the Superceding Indictment will only alter the language of the charges to reflect addition evidence discovered in an ongoing investigation, or — as is the case with Special Counsel (allegedly) Jack Smith, the substance of the allegations are changed to address rulings made in the case by the courts.

The filing of a superseding indictment nullifies the legal validity of any prior indictments. There is only one indictment in force at any given time in a criminal case as the indictment gives “notice” to the defendant of the specfic charges in the case, and the necessary facts for the defendant to be aware of in order to be informed of the likely evidence to be presented. The language of the indictment, combined with the material provided in discovery, are intended to prevent any “surprise” when it comes time for trial.

The manner in which prosecutors write indictments has evolved over the past couple of decades — not in a good way in my view — in that prosecutors now commonly use the indictment as a press release. DOJ policy allows prosecutors to comment publicly and answer questions about any information that is set forth in publicly filed documents. Because grand jury proceedings are covered by secrecy rules under the Federal Rules of Criminal Procedure, the testimony and evidence received by the grand jury is not supposed to be disclosed to the the public. The only exception is the information put in the grand jury and filed on the public docket. Because of this, a practice has developed in DOJ to load-up indictments with all the facts needed to tell a good “story” — to set the narrative so to speak — when those facts are not necessary to serve the “notice” function of an indictment to the defendant.

Special Counsel (allegedly) Smith sought and obtained a Superseding Indictment in the prosecution of former Pres. Trump in the matter filed in the District of Columbia regarding his efforts in the aftermath of the election in 2020. This new version strips out much of the information that the Supreme Court ruled would be covered by Presidential Immunity because it went directly to the core functions of the Presidency — specifically, his management of the Justice Department and subordinate Justice Department Officials whose actions he was allowed to direct in his capacity as POTUS.

Two things are not surprising notwithstanding the caterwauling from some quarters by other commentators less well versed in how this process works.