The Trump indictment watch yesterday was not entirely in vain as Special Counsel Jack Smith’s team served up not the expected indictment of former President Trump on charges arising from his efforts to overturn the 2020 election but a superseding indictment in the Mar-a-Lago documents case instead. But for those anxious for Trump to be held accountable, the superseding indictment may prove to be a mixed blessing.
A superseding indictment is simply a replacement version of the original indictment that usually contains additional charges and or additional defendants. In Trump’s case, the superseding indictment did both.
An additional defendant, Carlos De Oliveira, the property manager at Trump’s Mar-A-Lago personal residence, was added for his role in seeking to help Trump allegedly try to delete the computer server that contained surveillance footage. According to the indictment, Oliveira had a 24-minute telephone call with Trump after the government asked for surveillance footage that would have monitored the storage room where many of the classified documents had been kept.
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Following the call, Oliveira and Walter Nauta—Trump’s personal aide and other co-defendant—toured the security booth where the surveillance was displayed as well as the tunnel where the storage room was located. Oliveira spoke to an employee identified as Trump Employee 4—the information technology expert at Mar-a-Lago, Yuscil Taveras—and supposedly told him in a conversation taking place in a closet that “the boss” wanted the server deleted. Taveras declined. For these efforts, Oliveira earned himself a place in the superseding indictment alongside Trump and Nauta.
The indictment also added charges that included not only the attempted destruction of evidence arising from Oliveira’s efforts to delete surveillance footage but also an additional count under the Espionage Act. The Espionage Act count is of particular note as it arises from the audio tape made at Trump’s Bedminster residence in which he bragged about having a classified document relating to military attack strategy. Trump later claimed that he was merely bragging and did not actually have a classified document but the count specifies that the classified document did exist and involved Iran.
The good news for fans of accountability is that the additional charges are bad news for Trump. In addition to adding more potential jail time, the charges also make some evidentiary hurdles easier for the Justice Department prosecutors.
Specifically, charging Trump with allegedly retaining the classified document held in his hand at Bedminster, New Jersey as he was caught on audiotape bragging about having it means likely avoidance of a fight over whether the tape is admissible. Without the charge, Trump’s defense team could have argued successfully that the tape was inadmissible but with the charge the tape likely is easily admissible as direct evidence of Trump’s guilt. That is an evidentiary decision that even Judge Aileen Cannon—the inexperienced Trump-appointed judge assigned to the case—probably cannot screw up.
The charge arising from trying to delete the surveillance tape is helpful to the prosecution proving Trump’s criminal intent and state of mind. Juries get the idea that no one bothers to try and destroy evidence that is not incriminating.
But the bad news for accountability fans is that the superseding indictment will bring more delay. The new defendant Carlos Oliveira will need to get a lawyer and if he does this at the same pace as Walt Nauta then that will buy Trump at least another week's worth of delay. Then there is the time it will take for a new lawyer to get up to speed in the case and the likely argument by Trump’s team that the new lawyer will also need a security clearance, which can be a lengthy process.
A copy of a superseding indictment is seen, after U.S. prosecutors broadened their criminal case against Donald Trump as they charged a second of his employees with helping the former president evade officials who were trying to recover sensitive national security documents he took from the White House, in a photo illustration in Washington, U.S. July 27, 2023.
REUTERS/Don Pessin/IllustrationWhile DOJ can argue that Oliveira’s lawyer will not need a security clearance, the resolution of that argument will take time and probably have to be done before Judge Cannon can start the Classified Information Procedures Act (CIPA) hearing processes to determine the manner in which classified information will be handled in the trial. The chances of the documents case getting to trial before the presidential election season were always poor but, at least in my view, the superseding indictment makes it a no-brainer that the trial will be delayed well into the election red-zone time period.
In most cases, the prosecution delivering a superseding indictment as the possibility of indictment of a second case looms would create enormous pressure on a defendant and his legal team to seek a plea deal. The financial burden of maintaining two defenses would be staggering. But Trump’s legal bills likely are being borne by campaign contribution funds steered into PACs so the financial strain does not affect him the way it would someone actually paying for their defense personally.
But even more importantly, Trump’s legal defense has become one and the same with his campaign since he believes that his best defense is to again become president so that he can appoint an attorney general who will dismiss the charges against him. Under this defense theory, Trump has no incentive to cop a plea.
The timing of the superseding indictment also reveals the unusually frenzied pace of Smith’s prosecution efforts. While superseding indictments are not rare the addition of charges and defendants reflects a sense that the case and investigation were not concluded at the time Smith chose to indict. Normally, prosecutors prefer to have all charges and defendants identified before they indict, but Smith is laboring under unusual time pressures.
Nor did Attorney General Garland do him any favors by not even appointing him until months after the search warrant on Mar-a-Lago yielded the documents that are the foundation for the first-ever federal indictment of a former president of the United States. Smith and his team are laboring mightily, but time is not on their side and Trump and his team know well the adage that justice delayed is justice denied.
Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.
