Special Counsel Jack Smith Moves To Drop Criminal Case Against Trump For 2020 Election Subversion

Special counsel Jack Smith is seeking to drop his criminal case against President-elect Donald Trump for attempting to subvert the 2020 election, saying Justice Department policy prohibits him from continuing the case after Trump’s imminent inauguration.

In a court filing on Monday, Smith said he consulted with Justice Department officials about whether an ongoing prosecution against a person elected president might continue. But he said officials concluded that a longstanding prohibition on prosecuting a sitting president would apply to pending cases against Trump.

“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,” the special counsel wrote.

Smith, however, left open the possibility that the Justice Department might reinstate the charges when Trump’s term as president ends. Smith asked U.S. District Judge Tanya Chutkan to dismiss the election-related case “without prejudice” — a legal term that means the case could theoretically be brought again in the future.

“The Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President,” Smith wrote. But, he added, constitutional immunity for sitting presidents does not require that the case be dismissed “with prejudice” — the term for ending a case once and for all.

Still, the prospect of reviving the case after Trump’s term ends in January 2029 would pose many challenges, from possible problems with the statute of limitations to the potential for Trump to use his term in office to further undermine the case or pardon himself from the alleged crimes.

By the end of his term, the events in question — Trump’s alleged conspiracy to overturn Joe Biden’s 2020 victory and stoke violence on Jan. 6, 2021 — will be eight years old. Witnesses may have died, or their memories may have faded. And it’s far from clear that the Justice Department at that point will have any interest in revisiting the case, particularly against an ex-president who will then be 82.

Smith’s effort to bring Trump to trial quickly failed at multiple junctures, particularly a lengthy appeal at the Supreme Court over Trump’s claim that he was immune from the charges. And that effort was doomed the moment Trump won the 2024 election. Even if Smith had not opted to drop the charges on his own, Trump had repeatedly pledged to fire Smith immediately upon taking office, and Trump’s attorney general would have ordered the case dropped if it had remained pending.

The defensive language in Smith’s filing about the strength of the case could be aimed at bolstering the defenses for prosecutors involved in the case if Trump follows through on promises to dismiss them or even bring criminal charges against them.

A spokesperson for Smith’s office declined to comment beyond the filing. Trump’s team agreed to the dismissal motion and doesn’t appear to be seeking a more definitive burial of the case. In a statement, a Trump spokesperson celebrated the decision as “a major victory for the rule of law.”

The dismissal will not be formally effective until it is approved by Chutkan, who has been overseeing the case since it was filed in August 2023. Judges normally quickly grant such motions when filed by the government, although there have been occasions where a judge questions the grounds for a dismissal.