Special counsel Jack Smith asked two courts Monday to effectively shut down the federal criminal cases he brought against President-elect Donald Trump last year, bowing to a Justice Department policy that says it is unconstitutional to pursue prosecutions against sitting presidents.
The twin requests by Smith — made to judges in Washington and Atlanta — were an acknowledgment that Trump will reenter the White House in January unburdened by federal efforts to hold him accountable through charges of plotting to subvert the last presidential election and holding on to a trove of highly classified material following his first term in office.
The double-barreled filings were also the latest sign that Smith and his team were working to close up shop after years of intensive investigation and courthouse drama that tested the justice system’s ability to hold a once-and-future president to account amid shifting politics, misinformation and evolving legal standards.
Hours after Smith submitted his requests, Judge Tanya S. Chutkan, who is overseeing the election interference case in Washington, issued a brief order dismissing the proceeding.
Smith’s moves came after the president-elect began filling out his choices to lead the Justice Department. They followed Trump’s vow on the campaign trail to fire Smith within “two seconds” of taking office and to launch investigations into the prosecutors who pursued him, along with other perceived enemies. Smith has signaled that he intends to resign before Trump takes office.
In both of the court submissions, Smith made clear that his moves to end the charges against Trump were a necessity imposed on him by legal norms, rather than a decision made on the merits of the cases or because of problems with the evidence. The filings cited a Justice Department policy that sitting presidents may not be prosecuted.
That policy, Smith wrote to Chutkan, “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.”
Smith acknowledged the uniqueness of the situation, writing that neither the Justice Department nor the country had ever “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.”
Trump’s political strength only grew after the indictments by Smith and two others by local prosecutors in New York and Georgia, and Trump’s allies sought to portray the moves Monday as vindication.
Smith’s decisions to seek the dismissals were “a major victory for the rule of law” and an important step in ending “the political weaponization of our justice system,” Steven Cheung, a spokesperson for Trump, said in a statement shortly after the filings were released.
While Smith sought to end the criminal cases before Trump was inaugurated, he did not definitively close the door on the possibility of the prosecutions one day being revived. In both filings, his requests were for dismissals “without prejudice,” leaving open the possibility that the charges might be refiled after Trump leaves office for the second time.
But the filings did not address the question of whether the statute of limitations — five years for most federal offenses — would make that impossible. Some prosecutors believe that the time Trump spends in the White House should not be counted as part of that five-year period.
Trump remains a defendant in a separate case brought by the district attorney in Fulton County, Georgia, accusing him of seeking to overturn his election loss there in 2020. That case is tied up in legal wrangling and its prospects for going forward are unclear.
Trump also faces sentencing in New York City on state charges of falsifying business records to cover up a sex scandal, but that proceeding has been delayed and the prosecutor has signaled a willingness to freeze the case for four years while Trump is in office.
Tersely written and only six pages long, Smith’s filing to Chutkan in U.S. District Court in Washington effectively ended the Justice Department’s yearslong efforts to hold Trump accountable for his attempts to cling to power after he was defeated by Joe Biden in 2020.
The indictment in that case accused Trump of spreading lies that there had been widespread voter fraud, pressuring other officials to act on those lies and delivering an incendiary speech on Jan. 6, 2021, before a mob of his supporters stormed the Capitol in an effort to block Congress from certifying Biden’s victory.
Smith’s separate filing to the 11th Circuit Court of Appeals, which is weighing the fate of the documents case, referred to the Jan. 6 case filing and was even terser — but also more complicated.
In that submission, Smith said he intended to pursue the charges against Trump’s two co-defendants, Walt Nauta and Carlos De Oliveira, who worked for him at his Mar-a-Lago estate in Florida and were accused of helping obstruct the government’s efforts to retrieve the classified documents.
And yet it was not immediately clear how prosecutors could continue their case against the two men without Trump, given that so much of the evidence in the proceeding revolves around him.
Moreover, Smith did not mention the fact that Trump will regain the power to pardon people for federal crimes when he is inaugurated on Jan. 20. And there is little reason to expect that he would allow the cases against his employees to move forward past that date.
The documents case was already in limbo when Smith sent his filing to the 11th Circuit. The appeals court was considering whether to affirm or reverse a decision this summer by Judge Aileen M. Cannon, one of Trump’s own appointees, to throw out the charges altogether on the grounds that Smith had been unlawfully appointed to his job as special counsel.
Smith withdrew his appeal with regard to Trump, effectively allowing the case against him to end. But prosecutors will continue to appeal the dismissal of the charges against Nauta and De Oliveira, largely out of a concern that letting Cannon’s ruling survive without a challenge could affect the Justice Department’s ability to appoint special counsels — and other top prosecutorial positions — in the future.
It was no surprise that Smith effectively dropped both sets of charges against Trump. But the timing of the moves — coming one week ahead of an early-December deadline he had set for himself to alert the courts about how he planned to proceed with the cases — was another indication that the special counsel was racing to wrap up his investigation.
The only significant task remaining for Smith’s team at this point is to file a final report on his investigations. But that document may not contain any major revelations beyond the evidence already laid out in Trump’s indictments and follow-up filings, and could be completed relatively soon, according to several people familiar with the situation.
Even on its deathbed, the election interference case — which Smith laid out in great detail in a filing to Chutkan just last month — will probably have repercussions for decades to come. The charges described unprecedented conduct by a president and represented a major test of prosecutorial power, the courts and executive authority.
The case also resulted in a landmark ruling by the Supreme Court this summer granting Trump — and all future former presidents — a broad form of immunity from prosecution on charges arising from their official duties. That ruling will shape the way that presidents are — or are not — held accountable by prosecutors in perpetuity.
The Justice Department first began to investigate Trump’s role in seeking to overturn his loss to Biden in the months after the Jan. 6 attack on the Capitol. Prosecutors examined his connections to a wide array of figures, including far-right extremists, political organizers and operatives involved in a plan to create false slates of electors claiming that he won in states where in fact he had lost.
Around the same time, career prosecutors began a separate inquiry into Trump’s refusal to return a highly sensitive trove of state secrets that he removed from the White House and took to his post-presidential home at Mar-a-Lago.
Smith took over both of the inquiries in mid-November 2022 as a way to ensure some measure of independence after Trump announced that he was launching his third bid for the White House.
In June 2023, Smith brought charges against Trump in Florida, accusing him of violating the Espionage Act and of obstruction of justice. Two months later, a second indictment was filed in Washington, accusing Trump of launching intersecting plots to cling to power after losing the 2020 presidential race.
This article originally appeared in The New York Times.
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