By Kyle Cheney
Special counsel Jack Smith on Monday dropped one of his criminal cases against President-elect Donald Trump and was on the verge of dropping the other — a termination that is required, Smith said, by Justice Department policy that bars continuing the prosecutions once Trump is inaugurated.
In a pair of court filings, Smith said he consulted with Justice Department officials about whether an ongoing prosecution against a person elected president might proceed. Officials in the department’s Office of Legal Counsel, Smith said, concluded that a longstanding prohibition on prosecuting a sitting president applied to the two cases against Trump.
U.S. District Judge Tanya Chutkan quickly granted the motion to dismiss Trump’s Washington D.C. case, in which he was charged with conspiring to subvert the 2020 election. A similar motion in the Florida case, in which Trump was charged with hoarding classified documents at his Mar-a-Lago estate, is awaiting approval from a panel of appeals court judges.
The developments formalize what was already clear the moment Trump won the 2024 election: Both federal criminal cases against him are about to end.
But Smith left open the possibility that the Justice Department might resurrect the charges after Trump finishes his second presidential term. Smith asked Chutkan to dismiss the election case “without prejudice” — a legal term that means the case could theoretically be brought again in the future.
Chutkan agreed to Smith’s request. In a two-page order, she noted that she could have gone further and barred prosecutors from ever trying to revive the case in the future — but that there was no reason to do so.
“There is no indication of prosecutorial harassment or other impropriety … and therefore no basis for overriding the presumption [in favor of a dismissal without prejudice] — and Defendant does not ask the court to do so,” Chutkan wrote.
The prospect of reopening either case after Trump’s term ends in January 2029 would pose many challenges. Prosecutors might run into problems with the statutes of limitations, or Trump might use his second term in office to further undermine the cases or pardon himself from the alleged crimes.
By the end of that term, the events in question — Trump’s alleged conspiracy to overturn Joe Biden’s 2020 victory and stoke violence on Jan. 6, 2021, and his retention of national security documents the months after his first term — will be roughly eight years old. Witnesses may have died, or their memories may have faded. And it’s far from clear that the Justice Department, no matter who is president in 2029, would want to revisit the cases against an ex-president who will then be 82.
Smith, who was appointed special counsel in November 2022, brought both sets of felony charges in 2023. His effort to quickly bring Trump to trial failed at multiple junctures. The election case was delayed by an appeal at the Supreme Court over Trump’s claim that he was immune from the charges. The classified documents case was waylaid in July by a ruling from U.S. District Judge Aileen Cannon, tossing out the charges on grounds that Smith was unlawfully appointed.
Before the election, Smith initiated an appeal of that decision, and his motion on Monday in that case said the government’s appeal seeking to vindicate the legality of Smith’s appointment “will continue” against two co-defendants in the Florida case: Trump personal aide Walter Nauta and Mar-a-Lago property manager Carlos de Oliveira.
Smith’s motions Monday were in some sense a formality. 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 both cases dropped if they had remained pending.
Once Trump becomes president, he’ll also have the power to pardon Nauta and de Oliveira, and he’s widely expected to do so if his new Justice Department appointees don’t simply drop the remaining portion of the appeal.
The Justice Department’s Office of Legal Counsel has long concluded that sitting presidents are immune from prosecution, delivering lengthy opinions on the matter in cases connected to Richard Nixon and Bill Clinton. But Smith noted that the department had never been presented with a case in which a person already being prosecuted was elected president before the case reached trial. Nevertheless, OLC reached the same conclusion, he noted.
The defensive language Smith used Monday about the strength of the 2020 election case could be aimed at bolstering the defenses for prosecutors involved in the case if Trump follows through on promises to fire them or even bring criminal charges against them.
A spokesperson for Smith’s office declined to comment beyond the filings. Trump’s team agreed to the dismissal motions and don’t appear to be seeking a more definitive burial of the cases. In a statement, a Trump spokesperson celebrated the decision as “a major victory for the rule of law.”
“These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought,” Trump said in social media posts celebrating the legal developments.
The prospects for prosecutors in two state-level criminal prosecutions of Trump have also dimmed considerably since his victory at the polls earlier this month. In New York, where he was convicted in May of falsifying business records to cover up a hush money scheme, his sentencing has been indefinitely delayed. In Georgia, where he was charged with interfering in the 2020 election in that state, an appeals court argument has been called off.