Jack Smith seeks to dismiss the cases against Trump

They're over.

Today, Special Counsel Jack Smith moved to dismiss his criminal cases against President Trump.

In the Washington, D.C. case, where Trump was indicted relating to January 6 and efforts to challenge the 2020 election, Smith “moves for dismissal without prejudice.” The Florida is on appeal after the District Court Judge Aileen Cannon concluded Smith’s appointment was unconstitutional. Special Counsel Smith moves “to dismiss the appeal in this case as to defendant Trump.” The appeal will continue as to the two other defendants (Waltine Nauta and Carlos De Oliveira). charged with Trump.

The basis for dismissal? Smith, in consultation with the DOJ’s Office of Legal Counsel (OLC), has determined that the Constitution prohibits the prosecution of a sitting President “and that as a result this prosecution must be dismissed before” Trump’s inauguration. Trump’s attorneys did not object to these motions.

As we saw from the election (it seems a lot longer than 20 days ago), the lawfare didn’t work. Special Counsel Smith was both too late and too aggressive.

His approach to the D.C. case – to indict every act of Trump that he could, including those that were undoubtedly official acts as President – backfired spectacularly. After a shortened appeals process which favored Smith, the Supreme Court held that at Trump was immune from prosecution for some of the indicted conduct. See Trump v. United States, 144 S.Ct. 2312, 2335 (2024) (“Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”) The case was remanded to the District Court for a determination of whether Trump’s conduct, that which was not “Presidential” or part of the Executive function, qualified as official or unofficial.

This setback proved fatal to Special Counsel Smith’s expedited timeline. He wasn’t going to get Trump to trial before the November 2024 election, despite the best efforts of Judge Tanya Chutkan, who violated Trump’s constitutional rights by granting an early trial date. Had Special Counsel Smith brought the charges sooner, and had he more carefully selected the charges conduct and crimes, Smith might have got his day in Court. And before a D.C. jury, Smith would have secured the conviction.

What happens now? The cases will be dismissed, though Trump’s attorneys will likely request that they be dismissed with prejudice (meaning they can’t be filed again). It’s doubtful that Judge Chutkan in D.C. does Trump any favors. Update: Judge Chutkan just dismissed the DC case without prejudice.

If the cases are dismissed without prejudice, what happens with the Statute of Limitations? That question, which would be argued if the cases are re-filed, may never be resolved.

Special Counsel Smith has forced Trump’s hand, requiring he pardon himself to spare the potential of prosecutions in 2029. There is no guarantee the Government would restart the cases after Trump’s term – Trump would be 82 years old, and he wouldn’t be the political threat that he was when these cases were filed – but you never know.

Better that Trump pardons himself and saves the trouble. On November 5, 2024, the people gave Trump that right.