Special counsel Jack Smith moves to dismiss Trump prosecutions

Jack Smith’s motion to dismiss the federal election interference case and the classified documents case acknowledges that Justice Department policy prohibits prosecuting a sitting president.

Department of Justice Special Counsel Jack Smith has moved to drop the US government’s pursuit of Donald Trump in both the election subversion case and the classified documents case against the President-elect.

The decision to drop the two federal cases against Mr Trump was widely expected following the former president’s decisive victory in the November 5 election. This outcome meant the prosecutions would eventually be dismissed – if not by lawyers in the current administration, then certainly by those in the next.

The Department of Justice is opposed to prosecutions against sitting presidents, and Mr Trump – who promised to fire Mr Smith “within two seconds” upon taking office - may also have attempted to pardon himself in any case.

Mr Trump insists he is innocent of all charges against him.

In 2023, a federal grand jury in Washington found probable cause for an indictment charging Mr Trump with four felony offences in connection with his efforts to interfere with the certification of the 2020 presidential election and the lawful transfer of presidential power.

The most severe penalty for these offences was up to 20 years in jail, with Mr Trump railing against the case as an attempt to derail his 2024 campaign and evidence of the political weaponisation of the Department of Justice.

At the time, Mr Smith said the march on the Capitol Building on January 6 2021 was an “unprecedented assault on the seat of American democracy” that was fuelled by “lies by the defendant targeted at obstructing a bedrock function of the US government: the nation’s process of collecting, counting and certifying the results of the presidential election.”

This was also a key theme of the unsuccessful election campaign mounted by Kamala Harris, who warned that Mr Trump would pose an even bigger threat to American democracy if he was elected for a second time.

However, in a six page document lodged with the US District Court for the District of Columbia on Monday (Tuesday AEDT), the government’s motion to dismiss the election interference case said the constitution forbade the prosecution of a sitting president.

“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,” it said.

“Confronted with this unprecedented situation, the Special Counsel’s Office consulted with the Department’s Office of Legal Counsel (OLC).”

“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’s filing noted that this prohibition was “categorical” and did not “turn on the gravity of the crimes charged” or “the strength of the government’s proof.” It also made very clear that the government stood fully behind the “merits of the prosecution” against Mr Trump.

Mr Smith’s filing said the impending inauguration of Mr Trump “sets at odds two fundamental and compelling national interests: on the one hand, the Constitution’s requirement that the President must not be unduly encumbered in fulfilling his weighty responsibilities … and, on the other hand, the Nation’s commitment to the rule of law and the longstanding principle that “[n]o man in this country is so high that he is above the law’.”

In June 2023, Mr Trump was also indicted in a federal court in Miami on 37 felony counts related to the hoarding of classified documents that he took from the White House to his home in Florida.

The Special Counsel had been appealing the decision by US District Judge Aileen Cannon to dismiss the charges against Mr Trump on grounds that Mr Smith himself was unlawfully appointed.

However, Mr Smith has now asked for the appeal to be dismissed in a filing lodged with the 11th US Circuit Court of Appeals on Monday (Tuesday AEDT).

“The United States of America moves … to dismiss the appeal in this case as to defendant Trump,” the filing said.

However, in a key difference with the bid to dismiss the election interference case, Mr Smith made clear that the case against two of Mr Trump’s employees would remain active.

“Dismissing the appeal as to defendant Trump will leave in place the district court’s order dismissing the indictment without prejudice as to him,” Mr Smith said. “The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them.”

The two co-defendants are listed as Waltine Nauta and Carlos de Oliveira, both of whom were employees of Mr Trump. They have pleaded not guilty to obstructing a federal investigation into the taken documents, with Mr de Oliveria saying he had “no clue” what was in the boxes he moved around Mar-a-Lago.

Responding to the decision by Mr Smith to drop the federal cases, Mr Trump’s communications director Steven Cheung hailed the outcome on Monday (Tuesday AEDT) as a “legal victory.”

“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,” he said.

“The American people and President Trump want an immediate end to the political weaponisation of our justice system and we look forward to uniting our country.”

Mr Trump posted his Truth Social platform that the legal cases brought against him were “empty and lawless, and should never have been brought.”

“Over $100 Million Dollars of Taxpayer Dollars has been wasted in the Democrat Party’s fight against their Political Opponent, ME. Nothing like this has ever happened in our Country before,” Mr Trump said.

He also posted that it was “a political hijacking, and a low point in the History of our Country that such a thing could have happened, and yet, I persevered, against all odds, and WON. MAKE AMERICA GREAT AGAIN!”