Special counsel Jack Smith filed court documents on Monday to dismiss President-elect Donald Trump’s criminal election interference case before he takes office in January, citing long-standing Justice Department policy that prohibits indictment and prosecution of a sitting president.
U.S. District Judge Tanya Chutkan granted the request just a few hours after Smith filed it, effectively ending the charges stemming from Trump’s alleged attempt to undermine the 2020 election on January 6.
While the dismissal was unavoidable, Smith asked that the case against Trump be dismissed “without prejudice,” which means prosecutors could bring the same charges again in the future.
Chutkan wrote in her order granting the request that “dismissal without prejudice is appropriate here,” noting that Trump’s presidential immunity from prosecution is not permanent.
“Dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office,” Chutkan wrote in the letter.
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Smith reiterated the DOJ’s policy in his six-page motion to dismiss filed in federal court in Washington, D.C., before emphasizing that he had no choice. He also stated that the department and the country “have never faced the circumstances here” in which a private citizen under indictment is elected to the highest office in the land.
“After careful consideration, the Department has determined that OLC’s [Office of Legal Counsel] prior opinions concerning the Constitution’s prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated. That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Government stands fully behind. Based on the Department’s interpretation of the Constitution, the Government moves for dismissal without prejudice of the superseding indictment.”
Since his appointment as special counsel two years ago, Smith has spearheaded two federal criminal investigations into Trump. Trump’s alleged mishandling of classified documents after his first term in office sparked one investigation in Florida, while his alleged attempts to overturn the 2020 presidential election results sparked another in Washington, D.C.
In the D.C. case, Chutkan was tasked with determining what aspects of Trump’s initial indictment could be preserved in light of the U.S. Supreme Court’s sweeping ruling earlier this year that made a sitting president immune from prosecution for any official acts performed while in office.
Furthermore, a criminal case cannot use evidence of a president’s official actions against him, even if the underlying conduct is personal in nature.
There is little chance that the case will yield concrete answers to the presidential immunity questions, as many believe Trump will pardon himself before leaving office.
In addition to seeking dismissal without prejudice, Smith’s memo repeatedly stated that Trump may still face legal issues after his second term in office.
“OLC explained that because a sitting president’s immunity is ‘temporary,’ extending only so far as his term in office, it ‘would not subvert the important interest in maintaining the ‘rule of law,'” according to the memo. It further states that such immunity “would generally result in the delay, but not the forbearance, of any criminal trial.”
Aileen Cannon, a United States District Court judge, dismissed the Florida document-hoarding case in July. The Trump-appointed judge reasoned that US Attorney General Merrick Garland unlawfully appointed Smith.
Consequently, Cannon dismissed the prosecution of classified documents, thereby tying up the special counsel’s case in appellate court until the election. Smith is also attempting to dismiss that case from the appellate court without prejudice.
Smith did, however, request that the court of appeals retain the case against Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, indicating his intention to pursue their prosecutions. Nauta and De Oliveira have each pleaded not guilty to election subversion charges.
As previously reported, Smith has reportedly informed those involved in the investigation that he will resign before Trump takes office on January 20.
