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Trump's new indictment in the January 6 case will not speed up the process before Election Day

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Special Counsel Jack Smith filed an updated indictment Tuesday against former President Donald Trump in an attempt to overturn the 2020 election, slimming down his original charge to comply with a Supreme Court ruling granting Trump some immunity. But the updated document still won't expedite the case enough to go to trial before Election Day.

Key data

Smith revised the indictment after the Supreme Court ruled that Trump could not be prosecuted for his “official acts” as president. The prosecutor removed some of the allegations from the original indictment and adjusted the wording to make it clearer that Trump was acting as a political candidate and private citizen.

The new indictment, approved by a grand jury, retains the same charges against Trump but makes it harder for Trump to argue in court that the charges are inconsistent with the Supreme Court ruling and simplifies the case to make it easier for U.S. District Judge Tanya Chutkan to decide which charges should go to trial.

Trump has criticized the updated indictment as “ridiculous” and containing “all the problems of the old indictment.” His lawyers will likely continue to argue that the charges should be dropped because Trump enjoys immunity.

Chutkan must rule on that motion and determine which charges can be pursued before the case can go to trial. And Trump will likely appeal her decision if she does not dismiss the case. Former U.S. Attorney Joyce Vance predicted the case will likely go to the Supreme Court a second time to decide on the final charges against Trump.

The judge had previously stated that once the immunity issue is resolved, it would take about four months for the trial to begin – as there are still other pre-trial issues to be resolved. This means that – especially given the appeal process – the case will not go to trial until next year at the earliest.

The delay also makes it unclear whether the case will even go to trial, since if Trump wins the presidential election, he will likely appoint Justice Department officials who would drop the charges against him.

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What you should pay attention to

The first clues about how the two sides plan to proceed with the case from here will emerge this week, when prosecutors and Trump's lawyers file reports proposing how the case should proceed. Chutkan will then consider those proposals at a hearing on Sept. 5. With an updated indictment now in place, Trump will also face a new trial, which has not yet been scheduled. It remains to be seen how long it will ultimately take to conclude the case and whether any significant rulings on the charges against Trump will be made before the election, even if there is no trial by then.

What does the new indictment say?

The updated indictment against Trump continues to accuse him of committing crimes by attempting to overturn the 2020 election, but leaves the four counts he was originally charged with unchanged: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding, and conspiracy to violate rights. Smith alleges that Trump acted unlawfully, including by pressuring state lawmakers and officials to reject the results, orchestrating the “Fake Elector” scheme in which GOP officials submitted false electoral slates to Congress, pressuring then-Vice President Mike Pence to refuse to certify the election results, and exploiting the Jan. 6 attack on the Capitol to stop Congress from certifying the results. Smith withdrew earlier allegations that Trump acted illegally by pressuring Justice Department officials to help him overturn the election after the Supreme Court ruled that doing so was an “official act.” Prosecutors also revised language in the indictment to make it clearer that Trump was acting in his capacity as a candidate, not as president, in his attempt to overturn the election.

What we don’t know

How the election process will ultimately play out. Legal experts have argued that much of the conduct alleged in the original indictment should be considered “unofficial” acts that can still be prosecuted. Former prosecutor Andrew Weissman told MSNBC on Tuesday that the updated indictment also means Trump cannot argue that the charges against him were unfair because a grand jury based its charging decision on evidence covered by presidential immunity, since a grand jury had to vote on the new charges after the Supreme Court's ruling. Even if Chutkan thinks prosecutors still have a strong case against Trump, it remains to be seen how an appeals court or the conservative-leaning Supreme Court will rule on what Trump can be accused of.

Important background

Trump was first charged in federal election proceedings in August 2023, after years of investigations into the Jan. 6 attack and the ex-president's post-election activities. The case is one of four criminal cases against Trump, only one of which has so far gone to trial and resulted in a conviction on 34 counts. Trump sought to dismiss the election case charges against him on the basis of “presidential immunity,” repeating an argument he has made in many of his civil and criminal cases. The justices were largely unconvinced by the ex-president's reasoning, and both Chutkan and an appeals panel rejected Trump's immunity claims before he went to the Supreme Court. The Supreme Court, however, disagreed and largely sided with the ex-president, ruling by a 6-3 vote that he and other ex-presidents enjoy criminal immunity for “official acts.” The Supreme Court had previously ruled in civil cases and held that former presidents could not be held liable for their official actions, but this was the first time the Supreme Court had ruled on immunity from criminal charges.

More information

ForbesJack Smith files new charges against Trump in January 6 caseFrom Alison Durkee
ForbesTrump still faces these crimes in the Justice Department's Jan. 6 case – and they could all result in prison timeFrom Alison Durkee
ForbesTrump claims Jack Smith couldn't file updated charges before the election – here's why it's wrongFrom Alison Durkee
ForbesWhat could happen to Trump's legal battles if he wins – or loses – the election?From Alison Durkee
ForbesTrump's legal battles – including his conviction: What happens on Election Day while the fraud case is appealedFrom Alison Durkee

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