Donald Trump will not be prosecuted for interfering in the 2020 election — for now.
Justice Department special counsel Jack Smith asked a federal judge on Monday to immediately dismiss the pending criminal indictment against the next American president before he takes office. But notably, he left the door open to prosecuting Trump after his term is over in 2029.
“Although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice,” Smith wrote.
Smith made clear that he’s only asking to drop the case because of a department policy that forbids federal law enforcement from targeting the official who leads the executive branch.
“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,” he wrote in a court filing he signed himself with blue ink.
Most legal memos in the two cases Smith has overseen have been electronically signed by prosecutors on his staff, but Smith opted to pen this one himself.
Trump was indicted by a grand jury in August 2023 and accused of directing a complex plot to remain in power after losing the previous election. His defense team successfully challenged the case all the way to the conservative-leaning Supreme Court, where the three justices he’d placed on the high court helped the majority redefine presidential immunity — sending the case back to prosecutors with severe limitations.
Trump was indicted yet again in August this year, facing revamped allegations that centered on the way he acted in his personal capacity to fabricate evidence of voting fraud and try to halt the congressional certification of election results.
But the delay was enough to derail the case, and Trump’s victory ensured the charges would go nowhere. In recent weeks, Smith paused the prosecution to confer with department officials about what to do next, and the result was no surprise.
In his six-page letter, Smith made clear the decision was essentially out of his hands.
“It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting president. But the department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected president,” he wrote.
“Confronted with this unprecedented situation, the Special Counsel’s Office consulted with the Department’s Office of Legal Counsel (OLC), whose interpretation of constitutional questions such as those raised here is binding on department prosecutors. 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 continued.
Smith pointed to two memos written by DOJ lawyers. The first, drafted during Watergate in 1973, reached the conclusion that prosecuting a president while in office would interfere with the constitutional separation of powers between the courts and the executive branches — and “unduly interfere in a direct or formal sense with the conduct of the presidency.” The second, written in 2000 shortly after President Bill Clinton’s impeachment, reached the same conclusions but further clarified that a prosecution would stop a president from carrying out constitutional duties because of the risk of imprisonment, the sting of public censure and the mental anguish of preparing a defense in court.
That department policy, which has gained increasing scrutiny in recent years, claims that a sitting president’s immunity is merely “temporary.” But Trump’s relentless court appeals during his four years out of office have successfully shown how someone can use that policy as a shield to halt investigations long enough to find refuge once again in the White House.
But even with his hands tied, Smith is going down swinging. In the letter, the special prosecutor explained that a judge could “toll” the statute of limitations while a president is in office, allowing the case to be revived when the commander in chief leaves the Oval Office. Additionally, Smith’s decision to call it quits early affords his team more time to put together a final report with damning details that could be made public by Attorney General Merrick Garland in the final days of the Biden administration.
“The government’s position on the merits of the defendant’s prosecution has not changed,” Smith stressed in Monday’s letter.
Moments after making the momentous decision in the elections interference case, Smith similarly dropped the Florida case against Trump for mishandling classified documents at his Mar-a-Lago estate. That second case was previously dismissed by U.S. District Judge Aileen Cannon, a Trump appointee who ruled in his favor at every turn, but the matter was on appeal at the Eleventh Circuit in Atlanta.
Smith asked the second-tier federal court to cut Trump loose, but he kept the case alive against Trump’s two co-defendants, teeing up the incoming administration to be the one to decide whether to drop the case entirely.
Tess Cohen, a former New York prosecutor, pointed out that the Jan. 6 case might very well be revived years from now — and Trump would have limited arguments against that. Dismissing a case without prejudice means that a decision isn’t final.
“If [Smith] is asking for it to be dismissed without prejudice, there’s no double jeopardy that would prevent a prosecution from going foward in the future. Double jeopardy applies when a jury has been empaneled. Before that happens, under constitutional law, double jeopardy does not apply.”
That said, Trump would surely argue that the case is too old by then.
“It’s a novel theory to say that this presidency would toll the statute of limitations. It’s just not something that’s come up before in our history,” she added.
Catherine Christian, another former Manhattan prosecutor, said Trump has four years to tank the case entirely by commanding the Justice Department to hammer the final nail in this coffin. The person to do it might be Todd Blanche, the defense attorney in this case who Trump has nominated for a top position in his DOJ.
“It would be interesting to see that when AG Bondi comes in, if she’ll send her deputy, Todd Blanche, to say that it should be dismissed with prejudice. What’s stopping them from doing that? The reality is, this case is dead,” she said.
Christian noted that Garland appointed Smith on Nov. 18, 2022, 667 days after Trump left office.
“Jack Smith put up a good fight,” Christian added. “The mistake wasn’t done by him. The question is, why did we wait a year to start this case?”
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Jose Pagliery is a reporter at NOTUS.