Jack Smith’s Election Interference Case Against Donald Trump Is Officially Toast (Updated)

  

Update – 5:05 p.m. Eastern:

As reported earlier, Special Counsel Jack Smith formally moved to dismiss the D.C. election interference case against President-elect Donald Trump, citing Trump’s reelection and DOJ policy not to prosecute a sitting president. (Smith also moved to dismiss the Government’s appeal of the dismissal of the classified documents case against Trump.) 

Now, Judge Tanya Chutkan has granted the Government’s request, ordering the dismissal of the D.C. case as requested. As noted in the original article, the dismissal is without prejudice, and in the Memorandum accompanying her order, Chutkan further explains why she believes such is appropriate in this instance, noting, “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.”

So…it’s officially over. For now. (Will it rear its ugly head in 2029? Only time will tell.) 

Update – 2:25 p.m. Eastern:

As anticipated, Special Counsel Jack Smith has now also moved to dismiss the Government’s appeal in the classified documents case against President-elect Donald Trump. The motion filed with the 11th Circuit Court of Appeals cites back to the same grounds as those cited in the motion to dismiss the D.C. election interference case. 

However, the Government also notes that it is not dismissing its appeal as to Trump’s co-defendants, Waltine Nauta and Carlos De Oliveira. In other words, the Government will continue to contest Judge Aileen Cannon’s ruling that the case should be (and remain) dismissed as to all three defendants on the basis of Smith’s appointment being a violation of the Appointments Clause and the Appropriations Clause of the U.S. Constitution. So, it appears the 11th Circuit (and perhaps ultimately the U.S. Supreme Court) will still need to wrestle with that issue. 

Original story:

He signaled this would be coming, but Special Counsel Jack Smith has now made it official: His office has filed a formal motion to dismiss the D.C. election interference case against President-elect Donald Trump. The motion may be viewed in full below. 

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In the six-page motion filed with the U.S. District Court on Monday, Smith’s office explained:

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. 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. 

The Government goes on to note that this policy applies regardless of “the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution” and maintains that it continues to stand “fully behind” said merits. 

The motion traces the historical context for the policy and moves for a dismissal of the superseding indictment without prejudice. (That it is without prejudice does leave open the possibility of the case being refiled at a later date.) As explained in the motion:

[T]he Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And 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. Cf. id. at 255 (“immunity from prosecution for a sitting President would not preclude such prosecution once the president’s term is over or he is otherwise removed from office by resignation or impeachment”).

Nevertheless, one assumes Judge Tanya Chutkan will grant the dismissal and the D.C. case will be off the table, at least during the pendency of Trump’s presidential term. I expect we’ll see the same as to the Florida classified documents case (currently up on appeal) — i.e., that the DOJ will drop its appeal there, as well — though no formal motion has been filed as of this writing. 

Following news of the dismissal, Trump Communications Director Steven Cheung issued the following statement:

“The American People re-elected President Trump with an overwhelming mandate to Make America Great Again. 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.”

DJT – DC – Govt Motion to Dismiss – 11-25-24 by Susie Moore on Scribd