Special counsel Jack Smith has resurrected the election interference case against Donald Trump, but prosecutors are being more methodical than they were last year, limiting what will happen before Election Day, people with insight into the case tell CNN.
Attorney General Merrick Garland and other top Justice Department were briefed on the special counsel office’s decision to rewrite the allegations against the former president this week, the sources said.
Notably, the special counsel won’t ask for a so-called mini-trial to take place quickly, one of the sources said. If it were to happen, that could feature witnesses such as former Vice President Mike Pence or Trump’s former White House chief of staff Mark Meadows, others familiar with the case say.
Called evidentiary hearings, those types of proceedings may be needed as prosecutors attempt to convince courts that some parts of Trump’s behavior after the election weren’t part of his duties as president. That’s a key issue given that the Supreme Court ruled last month that presidents enjoy immunity for official actions in office and that official work of the presidency can’t be used as evidence at trial.
Smith’s team had previously argued that Trump should be tried quickly because the charges involved an effort to “disenfranchise tens of millions of voters.” But the Supreme Court made that impossible – playing into Trump’s long-stated strategy of avoiding federal criminal trials before the 2024 election.
The ruling prompted prosecutors to spend eight weeks closely assessing evidence they believed they could still use before a jury and rewriting parts of the allegations line by line, people familiar with the effort told CNN. The superseding indictment excluded interactions Trump had with officials in his administration after the election.
The careful approach also gives federal district court Judge Tanya Chutkan a new framework for the case that preserves the original counts against Trump. Chutkan will have the final say on timing.
The special counsel’s office and Trump’s lawyers must file a joint status report to Chutkan on Friday, which they continued to haggle over even on Thursday afternoon, one of the sources said. Both sides are scheduled to appear before her on September 5 to discuss the next steps in the case, the first hearing since the Supreme Court’s ruling.
Trump has pleaded not guilty to all charges.
Used a new grand jury
Prosecutors secured the grand jury’s approval for the rewritten indictment on Tuesday – a different group than those who first heard evidence in the Trump case and approved the 2020 election charges against him a year ago, according to the special counsel’s office.
In a court filing, the special counsel’s office said that the new grand jury had not previously heard evidence in the Trump case, possibly to head off any objections from Trump’s defense team that they heard testimony now barred by the Supreme Court.
The grand jury that handed up the superseding indictment has been meeting at the federal courthouse in Washington since November 2023 and has returned indictments on a wide variety of crimes, including theft, firearms and some cases involving January 6 Capitol rioter defendants.
The special counsel also was cognizant of a 60-day time period where the Justice Department typically seeks to avoid taking major investigative steps that would influence voter’s perception of a political party or candidate.
The Justice Department’s manual for prosecutors says investigators shouldn’t take steps in a criminal probe intended to hurt or help any candidate or political party, and while a 60-day quiet period is usually observed, it’s not a hard and fast rule.
One of the Department’s most influential public integrity prosecutors, Ray Hulser, who worked on a department memo that codified how investigators should approach election years, now is a top lawyer in Smith’s office and appears to be involved in the latest activity in both criminal cases against Trump.
According to people familiar with the case, Trump’s defense team expected a rewriting of the indictment like this to set up the next phase of the case after the Supreme Court ruling. But the Trump side didn’t believe the superseding indictment would come before the fall and considered that it might be approved by a grand jury closer to the election.
The grand jury’s approval on Tuesday got ahead of the 60-day window, though Trump continues to call the case “election interference.”
CNN’s Casey Gannon contributed to this report.
