An Explanation As To Why Special Prosecutor Jack Smith Asked To Dismiss Trump’s Two Criminal Cases

Civil Rights Policy Brief #233 | By: Rod Maggay | December 27, 2024

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Policy Summary: On November 25, 2024 Special Prosecutor Jack Smith filed a motion in the United States District Court for the District of Columbia to voluntarily dismiss the felony charges brought against former President Donald Trump. The four charges brought against the former President were initially filed in August 2023 and were conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights. All charges related to Mr. Trump’s attempt to reverse his 2020 election loss to President Joe Biden. The case before Judge Tanya Chutkan never went to trial as the proceedings were delayed as the appeals process took its course. Hours after Special Prosecutor Smith’s filing to dismiss, Judge Chutkan granted the motion to dismiss without prejudice.

Additionally on the same day, Special Prosecutor Smith also filed a motion with the United States Court of Appeals for the Eleventh Circuit. The Special Prosecutor had also brought charges against Mr. Trump in Florida regarding the former President’s handling of sensitive documents and classified documents after he left office in 2020. The case in Florida had been dismissed by Judge Aileen Cannon after the Supreme Court’s landmark immunity ruling, which Judge Cannon had relied on to dismiss the charges. The Special Prosecutor appealed the dismissal to the Eleventh Circuit. However, the Special Prosecutor and his team relented and filed a motion to dismiss their appeal.

The motions for dismissal in the two cases have been filed because of Mr. Trump’s victory in the 2024 presidential election and his upcoming inauguration in January 2025 for a second term as President of the United States.

Policy Analysis: What needs to be made clear about the Jack Smith’s decision to file the motions to dismiss the charges in both cases against Mr. Trump is that they were not based on the merits of the case or the strength of the evidence against the former president.

When Donald Trump defeated Vice – President Kamala Harris in the 2020 election, it marked a stunning win that meant more than returning Mr. Trump to the White House for the next four years. His win presented a challenge as to whether or not the criminal cases against him could proceed to trial and whether he could be sentenced while serving his duties as President. According to U.S. Department of Justice policy from the Office of Legal Counsel (OLC), DOJ has determined that the Constitution prohibits the prosecution of a sitting President in order to not distract him from the incredible duties he has to manage. While this is a reasonable and logical course of action with regard to those who will serve in the position in the future, the situation was complicated because of the ongoing nature of the criminal cases prior to Election Day. The charges were brought when Mr. Trump was a private citizen although some of the acts alleged against Mr. Trump occurred while he was serving in his first term. Had Mr. Trump lost the election, the criminal cases would have for certain continued and a felony conviction, if one was imposed against Mr. Trump, could have, however unlikely, set up Mr. Trump for a custodial sentence. But Mr. Trump won the election and the Special Prosecutor had no choice but to have the felony charges and his appeal dismissed. With Mr. Trump set to be inaugurated in January, it becomes near impossible to proceed with the two cases in light of the Department of Justice’s policy with regard to prosecuting a president.

But, there is a silver lining even if it is a very small one. Per DOJ special counsel regulations, Jack Smith is required to file a final report with the Attorney General. Mr. Smith will likely put all of the evidence required and list all of the challenges that came with bringing the two cases against Mr. Trump. The Attorney General will then have the option to release the final report for everyone to see. Merrick Garland will likely chose to release the report as he has released all previous reports from Mr. Smith. However, if the final report is delayed and the decision is left to the new Attorney General appointed by Mr. Trump (likely nominee Pam Bondi) the new AG could decide to not release the final report. This could become key because the Special Prosecutor has repeatedly claimed that they had a very strong case against Mr. Trump. In one of the motions to dismiss that was filed, Mr. Smith said that the DOJ prohibition on prosecuting a president, “[did 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.” And, he also mentioned that with regard to the concept of presidential immunity that helped delay the cases that the principal of immunity is temporary, implying that future charges may still be possible (the statute of limitations for the charges against Mr. Trump will expire before he leaves office making it unlikely he would be indicted for these charges again). And, the conviction in the hush money case in New York could still apply to the President after he leaves office. These are small consolations, if at all, but these are the cards the Special Prosecutor had left to play after Election Day. If the final report is released, the public can review all of the evidence and decide for themselves the gravity of Mr. Trump’s crimes and whether their decision to return him to the White House was in the best interests of the United States of America. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• Department of Justice (DOJ) – the OLC memo “A Sitting President’s Amenability to Indictment and Criminal Prosecution” that formed the basis for not prosecuting a sitting president.
• Public Citizen – letter to Congress supported by 75 organizations asking Congress to overturn the Supreme Court’s presidential immunity ruling.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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