Pride and Prejudice: Refusing to Totally Surrender, Jack Smith Maneuvers to Preserve His Ability to Sue Trump in Four Years

Special Prosecutor Jack Smith’s admission that his cases against President Trump are over comes with a warning: He wants to preserve the possibility that the cases he pursues with great enthusiasm will be revived in four years, like Lazarus in the Bible.

The Sun reported the possibility that the cases could be dismissed on terms favorable to the special prosecutor before Mr. Smith made his moves. While asking Judge Tanya Chutkan to dismiss the election interference lawsuit, he acknowledged that the ban on suing a sitting president is “categorical.”

This was the decision of the Office of Legal Counsel, which was tried twice. accepted No administration can sue a president while he is in office. Judge Chutkan accepted the dismissal “without prejudice” once Mr. Smith took action; That meant the prosecutor could try again after President Trump leaves office.

The special counsel argued that the impossibility of trying Trump between 2025 and 2029 “does not affect the gravity of the crimes sought, the strength of the Government’s evidence, or the merits of the investigation, which the Government fully stands behind.” Mr. Smith argues that the immunity Trump will enjoy while in office is “temporary.”

Mr. Smith takes the opportunity to explain that the government’s “substantive position on its prosecution of Trump has not changed,” using absolutely unnecessary language in calling for impeachment. But the circumstances are what they are.” He is referring to the president-elect’s victory over Vice President Harris on Nov. 5.

Legal scholar Joshua Blackman defended Mr. Smith was unlawfully appointed by Attorney General Garland – a view Judge Aileen Cannon concurred in – saying she wanted to press Mr. Smith’s two cases but was “constrained by the OLC.” Mr Blackman adds: “Theoretically, some prosecutors could move to revive the case within four years.”

Judge Chutkan, sympathetic to the government’s position throughout the case, argues that “dismissal without prejudice is also consistent with the Government’s understanding that the immunity granted to the sitting President is temporary and will terminate when he leaves office.”

The judge explains: “When a prosecutor moves to dismiss an indictment without prejudice, ‘there is a strong presumption’ to that effect.” Trump wanted to be impeached with creating a situation where the bias problem may not be fully resolved until after President Trump’s second term.

Citing another district court case in the District of Columbia, Judge Chutkan cites a judge’s opinion that “only where dismissal without prejudice would ’cause harassment of the defendant or otherwise be contrary to the manifest public interest” could override the presumption.

President Trump may argue that even if the charges are dismissed, the possibility of them being refiled amounts to “harassment” in terms of his constitutional duties. The OLC, which Mr. Smith acknowledged “provided controlling legal advice to the Executive Branch,” recommended that Mr. Smith dismiss that case and the Mar-a-Lago case in South Florida.

The Office of the Legal Council recognizes that criminal prosecution of a president would “unduly interfere with the conduct of the President in a direct or official sense.” President Trump may also argue that impeachments that are suspended and reinstated after the president leaves office could also influence the president’s behavior.

The Justice Department also considered this question and ruled that the trial of a sitting president is prohibited “even if all subsequent trials are stayed until the President leaves office.” Mr. Smith writes that the OLC took into account that a court “may fairly set the statute of limitations to permit litigation against the President when he leaves office.”

But none of the OLC’s peers had contemplated this scenario, which Mr. Smith described as a scenario in which an indictment “had already been returned against a private citizen prior to his election as President.” The legal sages held: “Although the Constitution requires removal in this context, it does not require removal with prejudice, consistent with the temporary nature of the immunity granted to a sitting President.”

Mr. Smith insists that the Mar-a-Lago lawsuit against Trump’s other two defendants, Waltine Nauta and Carlos De Oliveira, will proceed; “because, unlike the defendant Trump, no provisional immunity principle applies to them.” But it is difficult to see how this happens.

Mr. Smith reportedly plans to resign before Trump takes office. Trump’s appointee as United States attorney for the Southern District of Florida is unlikely to pursue these prosecutions. President Trump may also pardon Messrs. Nauta and De Oliveira.

This would not prejudice Judge Cannon’s dismissal of the charges and would prevent the United States Court of Appeals for the 11th Circuit from initiating a review of his decision. It could also delay for another day the possibility of the Supreme Court reconsidering the constitutionality of special counsel.

Mr. Smith includes a footnote in his motion to dismiss explaining that the analysis provided by the OLC that binds him addresses “only pending federal litigation against the defendant.” This may be a reference to the words of District Attorney Alvin Bragg. to request He said Judge Juan Merchan was considering “non-dismissal options” regarding state hush money convictions against Trump. Unlike Mr. Smith, Mr. Bragg does not think Trump’s upcoming presidency will warrant his impeachment.