Special counsel Jack Smith on Monday moved to dismiss the charges against Donald Trump both for trying to steal the 2020 election and for mishandling classified documents, meaning that—for now—Trump will almost certainly avoid consequences for his illegal actions while in office.
Smith cited an opinion written in 2000 from the Office of Legal Counsel that says sitting presidents cannot be indicted or prosecuted. However, Smith said he wants the cases dismissed without prejudice, which would mean these cases could resume once Trump is no longer president. His term expires in 2029.
"After careful consideration, the Department has determined that OLC’s 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,” Smith wrote. “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 under Federal Rule of Criminal Procedure 48(a).”
Trump faced two separate federal indictments. In one, he was charged with four counts of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against rights for his efforts to steal the 2020 election. In the second, he was charged with 40 felony counts, including obstructing justice and making false statements.
In the classified documents case, Trump was charged along with two other defendants. Smith said the case against those two defendants—Walt Nauta and Carlos De Oliveira—will continue. However, Trump could pardon those two individuals, as the case is in federal court.
Legal experts say Trump’s defense team is likely to ask for the cases to be dismissed with prejudice—which would allow Trump to avoid ever facing consequences in the cases.
“Jack Smith specifically asks for a dismissal *without* prejudice, but I expect Trump's lawyers to fight for a dismissal *with* prejudice, which would prevent the charges from being reinstated after he leaves office,” former federal prosecutor Renato Mariotti wrote in a post on X.
It’s unclear whether a judge would grant that request from Trump’s lawyers.
Still, the dismissal is a win for Trump for now.
“The American People re-elected President Trump with an overwhelming mandate to Make America Great Again,” Trump communications director Steven Cheung said in a statement, even though Trump did not win a mandate. “Today’s decision by the DOJ ends the unconstitutional federal cases against President Trump, and is a major victory for the rule of law. The American People and President Trump want an immediate end to the political weaponization of our justice system and we look forward to uniting our country.”
As for the other cases Trump faces, he has yet to be sentenced in New York, where he was found guilty on 34 felony counts of falsifying business records to cover up hush money payments he made to a porn star during the 2016 campaign.
Trump had been set to be sentenced in the case in September, but Judge Juan Merchan delayed it until Nov. 26, after the election, which Trump unfortunately won.
Last week, Merchan adjourned that sentencing indefinitely so that Trump's defense team can file a motion to dismiss the case. He set the deadline for that motion for Dec. 2.
It’s unclear what Merchan will decide. But no matter what he does, Trump cannot pardon himself in that case since it took place in state court where he has no jurisdiction.
Trump also faces felony charges in Georgia, where he attempted to get the secretary of state to “find” just the right number of votes to make him the winner of the state. Trump cannot pardon himself in the Georgia case, either, as that is in state court.
However, it’s possible the state court judge decides to follow the federal precedent of not prosecuting a sitting president, and that case may too be paused while Trump is in office.
Ultimately, as Daily Kos wrote just after Trump won, his reelection was likely the end to his legal troubles:
In all these cases, Trump’s main strategy was to run out the clock and hope to get reelected. His reelection keeps him out of jail, and may even keep more money in his pocket.
And in the end, as with seemingly everything around him, Trump will suffer no consequences.
How utterly depressing.
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