Jack Smith is not throwing in the towel.

Jack Smith isn't throwing in the towel. Despite the setback from the Supreme Court's presidential immunity decision – which says presidents are immune from criminal prosecution for certain “official” acts while in office – Smith is still trying to hold Trump accountable for his actions following the 2020 election.

Smith's new indictment, filed Tuesday, charges Trump with the same four counts as the original indictment, including conspiracy to defraud the government, obstruction of an official proceeding and conspiracy to deprive citizens of their right to vote. Keeping the obstruction charge is a bold move, because in another case last term, Fischer v. United States, The Supreme Court also narrowed the scope of the law Smith relied on, overturning several of the Jan. 6 charges. Before that ruling, the law Smith relied on, the Sarbanes-Oxley Act, contained a section that seemed to deal generally with any obstruction of an official proceeding; however, in June the Supreme Court said that section applied only to tampering with official documents.

There has been speculation that Smith might refile his charges under a different conspiracy statute to have a more solid legal footing. That he is sticking with the original statute suggests he is willing to fight the issue in court, said Dennis Fan, a former federal prosecutor.

“I imagine he would say that undermining the certification election or submitting false voter lists compromises the integrity of documents within the meaning of 18 USC § 1512,” Fan explained. “The defendants in Fisherman got away with it primarily because they were involved in obstructing the proceedings and not because of the documents used in the proceedings.”

The special counsel also relies on a narrower set of evidence in the new indictment and has changed the co-conspirators involved. Former Justice Department official Jeffrey Clark is conspicuously absent. Former Vice President Mike Pence, a witness against Trump, also plays a smaller role in the indictment, but it is notable that he was mentioned at all.

The Supreme Court, in its presidential immunity decision, found that the communications between Pence and Trump were likely “official” acts that provide presumptive immunity — so Smith cannot use them as evidence unless he convinces the judge that waiving immunity protections in this case would not hinder the president's job. The same goes for Trump's communications with the Justice Department and national security officials.

In response, Smith removed a series of conversations between Trump and those officials in which they told him he had lost the election. “It becomes significantly more difficult to prove the timing of Trump's knowledge and his intentions if you can't actually prove some of the conversations that took place,” Fan said. “The only witnesses you could really bring to court would be these private attorneys that Trump was in contact with and potentially the vice president.”

Smith's new indictment includes the same list of co-conspirators, all described as Trump's personal lawyers, with the one former Justice Department official removed. While Pence is still mentioned, no conversations Trump and Pence had leading up to Jan. 6 can be found — notably, the Christmas Day conversation in which Trump tried to pressure Pence to reject electoral votes is missing. Instead, according to Smith's new indictment, Trump and his co-conspirators attempted to “enlist the Vice President, in his ceremonial role as President of the Senate, for the January 6 certification process in order to fraudulently alter the election results.”

The Supreme Court’s decision only concerns the communication Trump had with Pence, his Justice Department and his advisers. Technically, Smith can still talk about Pence — but if he fails to convince the judge that the conversations between Trump and Pence don't need to be protected by immunity, he can't use them, and that will open up more opportunities for Trump's defense team. “They don't have access to all the conversations, and then there are plausible gaps in knowledge that allow Trump to say, 'Look, I wasn't really involved in this; I didn't do anything between January 3 and January 5,'” Fan said.

Fan believes Smith has ways to get creative, and that's where Trump's private lawyers come in. Many of them could have been in the same room with Trump while he was having conversations with Pence or his Justice Department, or communicated with him shortly before or after to create evidence that could potentially help Smith. “If Trump wrote to one of his private lawyers, 'Today I had a conversation with my attorney general and he said, 'Blah, blah, blah' – should we do this?' and Trump says, 'Yes,' then it doesn't matter that that conversation between the attorney general and Trump cannot be on the record at this time,” Fan explained.

Judge Tanya Chutkan has scheduled a hearing for Sept. 5, and her main priority will be the task assigned to her by the Supreme Court: conducting an investigative mission to determine which parts of Smith's indictment are core presidential duties and which are not. Core presidential duties cannot be used to prosecute the former president; they may be official acts, but they are not core presidential duties that are exclusive to the president. (Those have only presumptive immunity, which Smith could potentially rebut.) What is not considered official acts, on the other hand, can be used at trial. To make those decisions, Chutkan could require a pretrial evidentiary hearing where witnesses testify, though some reports this week suggest Smith is unenthusiastic about that approach.

But Robert Katzberg, an experienced criminal defense attorney for white collar crimes and author of the book The disappearance processtold Slate that a pretrial evidentiary hearing may be necessary whether Smith asks for it or not. “As a fact-finder, she will be much better able to reach accurate, reality-based conclusions on novel, unprecedented evidentiary issues when key witnesses testify before her,” Katzberg said. “A full evidentiary hearing will make her conclusions both stronger and more difficult to overturn by appellate judges who do not have the benefit of their full and direct access to important witnesses.”