Could Jack Smith Pause Prosecution of Trump and Resume Pursuit in Four Years If Democrats Take Back the White House?

Can Special Prosecutor Jack Smith keep his two investigations of President Trump alive for another four years? That’s one of the questions emerging amid reports that the special counsel plans to close cases against Trump related to election interference and keeping classified documents at Mar-a-Lago.

Mr. Smith must notify Judge Tanya Chutkan and the 11th United States Circuit of Appeals of his intention by December 2. This date was Mr. Smith’s recommendation and was later confirmed by the trial and appellate courts.

The previously flustered prosecutor now writes that he needs more time to plan around this “unprecedented situation.” He wants more time to “determine the appropriate course forward consistent with Department of Justice policy.”

This policy, which has been in place for more than half a century, holds that “impeachment or criminal prosecution of a sitting President would unconstitutionally impair the capacity of the executive branch to carry out its constitutionally assigned duties.”

The same logic was also effective in the Supreme Court’s decision. Trump / United States that all official presidential acts are presumptively inviolable. The nines argued that the president’s duties have “unrivalled weight and breadth.”

When deciding Embers The special counsel, who led Mr. Smith to commute his indictment to avoid relying on actions the court ruled were “absolutely impeachable,” was undaunted by his belief that Trump “should be tried for his private crimes like any other citizen.”

Throughout the campaign, Mr. Smith and Judge Chutkan flouted longstanding Justice Department conventions that do not allow prosecutions to interfere with the presidential campaign — Judge Chutkan released publicly available portions of damaging documents Mr. Smith prepared about Trump — but this time the prosecutor acknowledged It seems that the non-prosecution policy is a policy that must be adhered to, at least for now.

Trump will not become an ordinary citizen again from noon on January 20 until noon on January 20, 2029. Trump promised to fire Mr. Smith “within two seconds” after becoming president. According to the special counsel regulations, the duty to distribute the pink slip falls to the attorney general.

In this case, that person might be Congressman Matt Gaetz, who not only shows loyalty to Trump but also hates the Department of Justice. In order for a private lawyer to be dismissed, “just cause” is required and the case must be made in writing. Mr. Smith and Attorney General Garland may have decided they didn’t have the courage to take on this fight.

President Biden’s Justice Department has one more card to play. The statute requires that “at the conclusion of the Special Counsel’s work, the Special Counsel shall submit to the Attorney General a confidential report describing the decisions to prosecute or dismiss reached by the Special Counsel.” Whether and how the report will be released is up to Mr. Garland or his successor.

But there is also the possibility that Ms. Garland and Smith may seek to preserve the charges until the day after Trump’s second term ends — the day he no longer relies on presidential immunity. They could ask Judge Chutkan to dismiss without prejudice the four charges against Trump for January 6, meaning those charges could be reinstated at a later date.

The Legal Information Institute explains that “one of the key features of unfair dismissal is that it does not prevent the case from being reopened in the same court.” Dismissal with prejudice is considered by the courts as a “decision on the merits” and the prosecutor’s office is prohibited from re-filing a lawsuit.

The Mar-a-Lago charges have already been dismissed by Judge Aileen Cannon, and Mr. Smith appears ready to halt an appeal to the 11th Circuit that could reinstate them. Judge Cannon’s decision would later become law. One complication is that the Mar-a-Lago case also involves two other defendants: Waltine Nauta and Carlos De Oliveira.

They lack the immunity that Trump would gain by taking office. If Mr. Smith does not move to dismiss the charges against them, Trump could pardon them — either before or after the 11th Circuit issues its ruling on Judge Cannon’s ruling. However, prosecutors need to pay attention to the statute of limitations.

Mr. Smith’s cases never went to trial, despite efforts to expedite them. That means he won’t have to worry about the double jeopardy constitutional ban, which provides that “no person shall be twice subjected to endangerment of life or body for the same offence.” The Supreme Court ruled that danger would only occur after the jury had been seated.