Special Counsel Jack Smith’s new slimmed down January 6 indictment of President Trump retains much of the original’s material — and all of its charges — but it was handed up, in a surprise to many observers, by a grand jury ostensibly fresh to the case against the 45th president. 

Mr. Smith said as much in a note attached to the edited, or superseding, indictment, unveiled on Tuesday.  He told Judge Aileen Cannon that the “superseding indictment, which was presented to a new grand jury that had not previously heard evidence in this case, reflects the Government’s efforts to respect and implement the Supreme Court’s holdings.”

The special counsel’s new charge sheet comes after the Supreme Court in Trump v. United States ruled that presidential official acts are presumptively immune. Chief Justice Roberts’s decision located Trump’s interactions with the Department of Justice in the heartland of presidential prerogative and held that they were absolutely immune. Mr. Smith removed those acts from his indictment, but otherwise kept it largely intact. 

This is the second time that Mr. Smith has opted to levy a superseding indictment against Trump. In July, he added charges in the Mar-a-Lago case. The prosecutor also named a third defendant, Carlos De Oliveira, the sometime property manager at the estate who’s accused of helping Trump hide the classified documents. All of those charges, though, are now dismissed after Judge Cannon ruled that Mr. Smith had been unconstitutionally appointed by Attorney General Garland and that his actions were legally void. Mr. Smith has appealed that ruling to the 11th United States circuit. 

The Supreme Court handed down its immunity ruling on July 31, meaning that Mr. Smith had mere weeks to convene a new grand jury. Federal rules mandate that a new indictment can be issued at any time before a guilty plea or trial begins, depending on which comes first. Once a jury is seated, the prohibition against double jeopardy leaves prosecutors with less room to maneuver. Judge Cannon, though, dismissed the case at an earlier stage. 

Mr. Smith has not been averse to convening grand juries to aid in his prosecutions of Trump. He charged the classified documents case in South Florida, but also kept a grand jury active in the District of Columbia. That so irritated Judge Cannon that last year she asked the parties to “address the legal propriety of using an out-of-district grand jury proceeding to continue to investigate and/or to seek post-indictment hearings on matters pertinent to the instant indicted matter in this district.”

The grand jury that returned the superseding indictment in the January 6 case worked in secrecy, as all grand juries are required to do. The Constitution ordains that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Those bodies hand up charges more than 90 percent of the time. The chestnut goes that they are wont to indict a ham sandwich. Defense attorneys are not permitted to be present.

Federal rules of civil procedure prohibit most participants in grand jury proceedings from disclosing what happens behind closed doors. The exceptions are witnesses, who are free to speak about their experiences. One reason why Mr. Smith’s latest grand jury flew under the radar could be that no new witnesses were called, given the similarity of the updated indictment to its predecessor.

That similarity could be the basis for Trump’s challenge — and possible Supreme Court ire down the line. The former president is likely to argue that Mr. Smith has not fully heeded the justices’ grant of immunity to the office of the president. All four charges are intact, as is a detailed description of Trump’s colloquies with Vice President Pence. The high court ruled those interactions were presumptively immune, but Mr. Smith elected to keep them. 

Mr. Smith’s achievement in persuading a second grand jury to indict Trump could spell trouble for the former president should the case ever reach a “petit,” or trial, jury. President Biden in 2020 won the District of Columbia with more than 90 percent of the vote. Trump, who garnered just over five percent, is likely to argue, at some juncture, that he cannot be delivered a fair trial there.  He unsuccessfully made similar arguments in his hush money trial at Manhattan, where he got only 12 percent of the vote in 2020.