Smith moves to drop Jan. 6, classified documents cases against Trump

Special counsel Jack Smith moved to dismiss both his election interference case and classified documents case against President-elect Trump, citing Department of Justice (DOJ) policy against prosecuting a sitting president.

“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,” Smith’s team wrote in the Jan. 6 case, referencing the Justice Department’s Office of Legal Counsel.

“That prohibition is categorical and does 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.”

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If approved by Judge Tanya Chutkan, the move would bring to a close the prosecutorial effort to hold Trump accountable for seeking to thwart the peaceful transfer of power that culminated with his supporters storming the Capitol.

Smith’s filing notes that Trump’s team did not oppose the motion.

In Trump’s Florida documents case, where he is facing charges for violating the Espionage Act and obstruction of justice, Smith also moved to dismiss an appeal to a motion tossing the case — a move that would likewise end that prosecution.

The filing notes, however, that the Justice Department will still be pursuing charges against Trump’s two co-defendants in the case, noting that Trump valet Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira have no immunity.

That leaves developments in the case for those two men in the hands of the coming Trump Justice Department. Still, Trump is planning a massive shift at the Justice Department and reportedly plans to fire all prosecutors who have worked on either case. He has also appointed several members of his criminal defense team to top positions at the department.

“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. The American People and President Trump want an immediate end to the political weaponization of our justice system and we look forward to uniting our country,” Steven Cheung, Trump’s communications director, said in a statement.

Smith is planning to resign from the Justice Department ahead of Trump’s Inauguration, after which the president-elect said he plans to fire him “within two seconds. ”But he could still write a report that summarizes his findings, something Attorney General Merrick Garland would need to approve but that would nonetheless offer a public accounting of the case.

The OLC determined in a 1973 memo that a sitting president cannot be prosecuted. The Supreme Court recently expanded that philosophy, ruling over the summer as Trump challenged the case that former presidents also maintain broad immunity.

Smith cast the decision as a difficult one, writing that while the case has not changed, Trump’s coming inauguration means “circumstances have.”

“This 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,” prosecutors wrote.

The Supreme Court’s decision had already complicated Smith’s approach in the case, but he nonetheless pushed forward, filing a superseding indictment with all the same charges but without references to Trump’s pressure campaign at the Department of Justice that the court determined was immune.

But after Trump’s election, Smith signaled a desire to rethink the case, asking for a pause in proceedings in both cases and promising an update for the court by Dec. 2.

In the classified documents case, Smith had appealed a ruling from Judge Aileen Cannon that found he was unlawfully appointed.

Legal observers thought Smith had a good shot at reigniting the case, as Cannon’s decision reversed 50 years of precedent regarding special counsel appointments and the appeals court reviewing the matter had already previously overturned her.

This story was updated at 2:13 p.m.