While Donald Trump faces a fresh indictment over efforts to overturn the 2020 election, some of his biggest allies are hoping the revised charging document helps them evade professional consequences and criminal prosecution for their roles nearly four years ago.
Special counsel Jack Smith rewrote Trump’s federal indictment after the US Supreme Court ruled this summer that the president can’t be prosecuted for “official acts” taken while president. Smith not only narrowed the allegations against Trump but also removed references to communications between Trump and federal government officials.
Now former White House chief of staff Mark Meadows and former Justice Department official Jeffrey Clark are trying to use their onetime boss’ winnowed indictment to their advantage.
Trump is the only one charged in the federal case, but several of his allies and members of his administration are facing state-level criminal charges over their meddling after the last election, including Clark and Meadows. Clark and others also are facing professional disciplinary proceedings that could disrupt their ability to practice law.
Meadows, in particular, could stand to benefit from the new Trump indictment handed up in federal court last week. Meadows was cut from much of the document, except for some interactions he had with Trump as the then-president sought to reach the secretary of state in Georgia on the phone to pressure him into aiding his election reversal gambit.
That has led Meadows’ attorneys to argue he should not be prosecuted for actions he took while serving in the White House. He’s been charged in Georgia and Arizona over his efforts to reverse the election results in the battleground states. His main defense so far has been to try to get the cases moved to federal court, which could make it easier for him to make a bid for his own immunity.
“I don’t think that’s Jack Smith’s intent,” an attorney close to the case told CNN about the new indictment bolstering Meadows’ argument. But, the attorney added, “it’s the way chips have fallen.”
Smith’s office declined to comment.
The Supreme Court’s ruling on immunity doesn’t provide protections outside of the president, but some legal experts say the fallout naturally extends beyond Trump – even if the arguments aren’t ultimately successful.
“These are not legal arguments that are, you know, outside the bounds of plausibility or just kind of good legal argumentation,” said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
“But I think that they are weak,” he added.
‘Carrying out his official duties’
Meadows has already seized on the changes in the new federal indictment in his Arizona criminal case.
“Mr. Meadows’ case for removal (to federal court) is supported by the superseding indictment filed this week by Special Counsel Jack Smith in United States v. Trump,” Meadows’ attorneys wrote in a court filing two days after the new indictment was unveiled.
The lawyers pointed to language Smith added to the indictment about the Georgia call in an apparent effort to distinguish it from Meadows’ role as chief of staff. The new indictment notes that Meadows “sometimes handled private and Campaign logistics for (Trump).”
Meadows’ attorneys took issue with that in the Arizona case.
“This is not an alleged criminal act by Mr. Meadows; as Chief of Staff, he was carrying out his official duties, even if the President was engaged in ‘unofficial’ activity,” they wrote in the court filing.
A federal judge in Arizona is set to consider Meadow’s arguments for moving his state criminal case to federal court during a hearing Thursday. A grand jury in Arizona handed up an indictment in April against Meadows and 17 other Trump associates over their election reversal efforts. Meadows has pleaded not guilty to the charges.
Two federal courts have already rejected Meadows’ bid to move his Georgia prosecution to federal court. His request for the Supreme Court to review the matter remains pending.
‘Unindictable’
Clark could also stand to benefit from the new Trump indictment.
As an environmental lawyer at the Justice Department, Clark tried to push through a letter to officials in Georgia after the 2020 election, urging the state to interfere with the election results.
Though Clark was previously an unindicted co-conspirator of Trump’s in Smith’s case, the special counsel prosecutors have taken him out of the indictment entirely, because of the Supreme Court decision that his efforts were undertaken as an officer of the president.
Like Meadows’ legal team, Clark’s attorney has wasted no time in trying to invoke the superseding indictment to his client’s advantage. In a filing last week as part of professional disciplinary proceedings, Clarks’ attorney said it “bolsters Mr. Clark’s immunity and evidentiary arguments.”
“The issuance of a new indictment handed down by a new grand jury effectively concedes that Mr. Clark is not just unidicted (sic), but unindictable,” his attorney, Harry MacDougald, wrote.
Clark also is trying to move his Georgia criminal case to federal court. That criminal case is currently on hold while a Georgia appeals court considers an attempt by some of the defendants to disqualify the Atlanta-area prosecutor who brought the charges.
Concerns over future testimony
Several former Trump administration officials – including some who were compelled to speak to the grand jury more than a year ago or were described as witnesses in the previous indictment – were relieved to see the new version deleted them as well as the allegations they witnessed, sources familiar with the matter told CNN.
They hope the superseding indictment means they won’t have to testify publicly against the former president, if his case goes to trial, the sources said.
Smith waged secret court fights for months to force advisers like former White House counsel Pat Cipollone to appear before the grand jury in the Trump election subversion investigation. Cipollone, who was described in the original indictment, no longer appears in the superseding indictment.
Some legal experts say the Justice Department could be less likely to push for testimony from White House officials in future criminal investigations if prosecutors aren’t able to use their testimony at trial.
Still, some witnesses like Meadows could appear in court in Trump’s case before a trial. Courts still must determine whether some of Trump’s actions after the 2020 election were presidential – and therefore immune – or part of his campaign, and Trump’s allies could be called to testify.
