Jack Smith revises the election rigging case against Trump

(CNN) — Special Counsel Jack Smith had to crack down on some parts of his election fraud case against former President Donald Trump after the Supreme Court ruled in a sweeping ruling that Trump had at least some presidential immunity in the prosecution.

But with the new indictment handed down by a grand jury on Wednesday, prosecutors have delicately reworded their allegations, making major changes as well as subtle corrections.

Trump's infamous Jan. 6, 2021, Rose Garden video – and others' attempts beforehand to convince Trump that he needed to tell Capitol rioters to leave – were removed from the indictment. However, Smith has added new details about the congressional certification process and Vice President Mike Pence's role in it to bolster other aspects of the case.

The Supreme Court's 6-3 ruling — which found that Trump had immunity for at least his official acts as president and absolute immunity for some “key” acts — made it clear that Smith would have to flesh out his allegations about Trump's attempts to use the Justice Department to rig the election. The majority opinion, written by Chief Justice John Roberts, did not give Smith clear instructions on how to revise the indictment, which had charged Trump with obstruction of justice and conspiracy.

In the new version of the indictment, Smith has made several minor changes – some easy to digest, others more nuanced – that he hopes will meet the Supreme Court's requirements while preserving enough of the case to convince a jury to convict.

Many of the prosecutors' changes were aimed at emphasizing that Trump was acting as a political candidate, not as president, in his alleged efforts to overturn the election.

Anthony Michael Kreis, a professor of constitutional law at Georgia State University, said Smith was “really trying to make a clear case for why this is criminal and why these criminal offenses all stem from Donald Trump's conduct as a candidate and not as president in any formal or official capacity.”

Here you can see how Smith changed the way he presented his case:

Removed: Briefings Trump received from his official advisers

The Supreme Court's ruling was particularly damaging to Smith's case because the conservative majority limited the type of conduct prosecutors could charge against Trump and the evidence they could use to prove allegations that were not protected by immunity. Roberts rejected prosecutors' arguments that they could use evidence related to a president's official actions to prove their allegations about his unofficial conduct. That means any evidence stemming from conduct Trump arguably committed in his official capacity as president is useless to prosecutors.

That may explain why Smith edited out several episodes in which Trump was briefed by U.S. officials who were supposed to advise the president. An early section of the indictment detailing how Trump was informed that his claims of election fraud were false omits accounts of the pushback he received from U.S. intelligence officials, his White House lawyers, the Justice Department and his vice president.

But Smith also cited other examples that did not involve federal executive branch officials: court rulings rejecting the fraud allegations, statements from state officials denying Trump's allegations, and statements Trump learned from his campaign team.

Elsewhere in the indictment, Smith removed evidence that appeared to come from conversations Trump had with his presidential advisers.

Jeff Clark, the Justice Department official who attempted to send a letter to the department seeking to tamper with the certification of Georgia's election results, is no longer listed as a co-conspirator, and references to department-related activities have been removed in several places.

In describing the five other co-conspirators still involved in the case, prosecutors added new wording: they were all “private” lawyers or political advisers – “none of them was a government official.”

Removed: Efforts to get Trump to contain the riot

Now missing from the chronology of the Jan. 6 attack on Congress that Smith laid out are efforts by Trump's advisers and others to convince the president that he needed to tell the rioters to leave the Capitol. Trump's various responses to the requests have also disappeared, including his afternoon tweets urging the rioters to “remain peaceful” without explicitly asking them to leave the Capitol. Prosecutors also removed their description of the video message from the indictment that he filmed from the Rose Garden later that same day, in which he called the rioters “very special” and ultimately urged them to leave the Capitol.

Also gone is the report of Trump's phone call with then-House Minority Leader Kevin McCarthy during the riots, in which Trump allegedly told McCarthy that the rioters were even more upset about the election than McCarthy. Prosecutors also removed remarks Trump allegedly made in the outer Oval Office while watching television coverage of the riots: “This is what happens when they try to rig an election.”

The changes may reflect prosecutors' belief that considerations about how a president should respond to an attack on the legislature are at the heart of the official presidential duties that the Supreme Court excluded in its ruling.

Reworked: Pence’s pressure campaign

Perhaps the boldest decision Smith made in revising his indictment was to keep his allegations about Pence's pressure campaign. The Supreme Court declared that the alleged conduct was “presumptively immune” and placed the burden on prosecutors to prove that criminal liability for those acts would not intrude on the president's executive powers.

In his response, Smith sought to distinguish Trump's interactions with Pence related to January 6 from the role of a vice president as a close adviser and potential successor to the president.

The new indictment repeatedly describes Trump's conduct toward Pence as a result of Pence's position as his running mate and as president of the Senate, which would decide on Congress's certification of the election results – a separate process from the executive branch in which Trump was not involved.

“The defendant had no official duties related to the certification process, but as a candidate he had a personal interest in being declared the winner of the election,” prosecutors wrote in a new line of the indictment. “All of the conversations between the defendant and the Vice President described below centered on the defendant's retention of power.”

To make the difference between Pence's typical duties as vice president and his duties as Senate president that day clearer, Smith added new details about what Pence did in his ceremonial role as presiding over the sessions of Congress.

For example, he describes how, about an hour before the storming of the Capitol, Pence “opened the election certificates and certification certificates that the lawful electors of the State of Arizona had sent to Washington.”

Added: Details on the election certificates allegedly targeted by Trump's conduct on January 6

The new language detailing what the congressional certification process entails may have a second purpose. Smith may be trying to bolster his position in light of another Supreme Court ruling issued this summer that limits the use of an obstruction charge that has been raised in several cases against rioters as well as in the impeachment of Trump.

The court ruled that the relevant statute applies only to obstructions intended to interfere with documents or other physical materials used in an official proceeding. The effect of the ruling is that to successfully bring a charge under the statute, prosecutors must link the obstructing conduct to documents or other items used in an official proceeding, such as the congressional certification ceremony.

Roberts' majority opinion left the door open for allegations that a defendant falsified documents, which appears to cover up the fake electoral plan in the Trump case. But prosecutors also seem keen to portray the Capitol attack as another attempt to prevent Congress from using the documents in the certification process.

A new line in the indictment details how, during the breach, congressional staff removed from the Senate the certification documents that Congress was reviewing during the ceremony. In the account of Trump's speech before the attack, prosecutors also included remarks by Trump that took aim at Congress's counting of the electoral votes. Trump told the crowd, “We have come to demand that Congress do the right thing and only count the electors who were lawfully chosen, lawfully chosen.”

Revisited: Trump's use of Twitter and how he spread allegations of fraud

Much of Trump's activity on Twitter – the social media platform now known as X – from the day of the insurrection was removed from the indictment. However, prosecutors held onto a tweet in which Trump criticized Pence for his lack of “courage” after the crowd broke into the building and the Senate was in recess. Prosecutors added that Trump sent that tweet “personally and unaided,” and also noted that he spent much of the afternoon watching television coverage from his dining room while “checking Twitter on his phone.”

Other Trump-era cases have debated whether Trump's activity on Twitter during his presidency counts as official activity. Perhaps with that in mind, Smith added a new description of Trump's Twitter use, noting that he “regularly” used Twitter “for personal purposes” – including for his false allegations of fraud, for his pressure campaign against Pence, and to “exploit the events at the Capitol on January 6th to illegitimately hold on to power.”

With another round of appeals likely, it will be many months and possibly years before it is clear whether Smith was successful in his attempts to salvage the charges. And if Trump wins in November, he will likely end the case before it can get that far.

According to Kreis, the revised indictment is a sign that Smith wants to avoid mini-trials to decide which parts of his case can remain in the proceedings. Such a process would have allowed prosecutors to present their evidence before the election, but would also have given Trump and his defense team a “foretaste of what was to come.”

“In my view, Jack Smith has concluded that conviction is as important as providing basic evidence to the public,” Kreis said.

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