'This is what happens': A notable piece missing from Jack Smith's superseding Trump indictment as case ramps up again

Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)

In the most recent turn of events regarding former President Donald Trump’s many trials , special counsel Jack Smith has filed a superseding indictment in Trump’s Jan. 6 case. It was delivered by a new grand jury, and Smith said it is meant to reflect the “efforts to respect and implement” the “holdings and remand instructions” in the Supreme Court’s landmark decision granting significant immunity to U.S. presidents.

Under federal law , if an indictment is dismissed because of “legal defect or grand jury irregularity, the government may return a new indictment within six months of the date of dismissal or within the original limitation period (whichever is later). After the original limitation period has expired, a superseding indictment may narrow, but not broaden, the charges made in the original indictment.”

Smith’s 36-page superseding indictment retains all charges against Trump from the original indictment while attempting to accommodate the U.S. Supreme Court’s broad immunity ruling issued over the summer. This landmark 6-3 ruling relieved Trump from prosecution and was the first time this had been granted to a former president.

Broad immunity shields Trump — and other former presidents — from charges tied to their official acts and at least partially shields Trump against his postelection conduct. However, this term is based on the court’s interpretation of what an “official act” is defined as, and the burden is put on the prosecution to show evidence that it is not, in fact, an official act, but rather a personal and criminal one.

The case for ‘official acts’

Much of the decision for broad immunity and the subsequent superseding indictment takes into account what constitutes an official presidential act.

In the original indictment, prosecutors argued Trump didn’t have authority as president regarding the transition of power, postelection. The superseding indictment removes language regarding Trump’s interactions with senior Justice Department officials and adds language depicting his actions as a presidential candidate not acting president.

An addition to the indictment reads, “The Defendant had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.”

One notable missing piece from the new indictment is the allegation that Trump refused to act when rioters stormed the Capitol on Jan. 6. In the original indictment, it was noted Trump allegedly remarked to Oval Office advisers, “This is what happens when they try to steal an election. These people are angry. These people are really angry about it. This is what happens.”

Trump has pleaded not guilty to one count each of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction to an official proceeding, and conspiracy against the right to vote and have votes counted.

Legal and campaign scheduling conflicts

Trump has managed to avoid facing trial for many of his felony changes, including the one regarding his efforts to overturn the 2020 election results after his loss to President Joe Biden and the subsequent Jan. 6 violent riot at the Capitol.

He appears to have cleared his schedule in anticipation of campaigning in the upcoming presidential election. Next up, the presidential debate against Vice President Kamala Harris is scheduled for Tuesday, Sept. 10, just a week before he was supposed to have been sentenced in his hush-money trial — although that date, too, has now been pushed to after the election .

Among the charges were falsification of business records with the intent to conceal illegal conduct connected to his 2016 presidential campaign. This sentencing hearing was originally scheduled for July 11, a week before the Republican National Convention, but was pushed to a new date following the Supreme Court’s immunity ruling.

Concerning Trump’s classified documents case in Florida, originally a trial date of May 7 was set, though that date had been indefinitely postponed . However, as of July, a federal judge dismissed the case altogether in a 93-page ruling citing the appointment of special counsel Smith violated the Constitution. Smith has appealed .

Trump faced prosecution for 37 criminal counts for charges including violations under the Espionage Act, conspiracy to obstruct justice, and making false statements to investigators. The dismissal ruling was delivered by U.S. District Judge Aileen Cannon, who was appointed by Trump in 2020.

Is Trump’s path leading to a presidency — or to prison?

With the new superseding indictment, could there be a possibility of resurrecting the classified documents charges as well? If Trump succeeds in serving a second term as President of the United States, will all of his remaining trials fall to the wayside?

Should voters push for more than having a felon as a viable candidate on the ballot? And maybe, more importantly, if he loses to Kamala Harris in November, will he stand by as a second Capitol storming takes place?

As recent history has shown us, anything is possible — and nothing should be a surprise.

Kelly Hyman is a TV legal analyst who has appeared on Fox News, CNN, ABC, NBC, CBS, CourtTV, BBC, MSNBC and is the host of the popular true-crime podcast, “Once Upon a Crime in Hollywood.”

The post ‘This is what happens’: A notable piece missing from Jack Smith’s superseding Trump indictment as case ramps up again first appeared on Law & Crime .