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Special Counsel Jack Smith is going to be out of a job on or before Jan. 20, and his cases against Donald Trump will not move forward anytime soon (and probably not ever). Yesterday, there were some developments on that front, which lawyer-reader A.R. in Los Angeles was kind enough to write up:
As expected, Jack Smith did, indeed, request dismissal for the election interference case in Washington, DC, without prejudice. His filing succinctly lays out the reasoning for the request. There is tension in the Constitution between a president's ability to carry out his responsibilities and the tenet that no one is above the law. To resolve that tension, the Office of Legal Counsel issued memos in 1973 and in 2000 setting out the categorical rule that sitting presidents cannot be prosecuted while in office. But that's only a temporary reprieve, at least theoretically. It implies any prosecution for crimes the president committed are held in abeyance, but not extinguished, while he is in office. For this reason, the presumption is that these charges should be dismissed without prejudice since it's not a dismissal based on the merits.
In fact, Smith's brief reiterates that the request to dismiss has nothing to do with the strength of the case, "which the Government stands fully behind." And because this is a categorical rule, meaning Smith has no discretion to continue the case while Trump is in office, there should be no question that the statute of limitations is tolled (paused) during his term.
Similarly, in the classified documents case, Judge Aileen Cannon had already dismissed the case without prejudice as a result of her ruling that Smith's appointment was unconstitutional. There, Smith has agreed to drop Trump from the case, but the action against co-defendants Walt Nauta and Carlos DeOliveira will proceed. If the Eleventh Circuit revives the case for those two and sends it back to Cannon, they could go to trial. If convicted, they could be compelled to testify in the case against Trump if it's re-filed when he leaves office. At that point, there's no risk of further criminal prosecution, so they can't rely on the Fifth Amendment.
Smith is basically forcing Trump's hand at this point. He'll probably hand the classified documents case off to the U.S. Attorney's office in Florida. Once in office, Trump may try to impermissibly interfere with the case by demanding that the U.S. Attorney drop the charges and replacing him if he won't, much like what happened with Geoffrey Berman, the former U.S. Attorney in the Southern District of New York. If Trump decides instead to pardon Nauta and DeOliveira, that would probably moot the Eleventh Circuit appeal, but the case could still be revived against Trump once he leaves office. And assuming the Eleventh Circuit reverses Cannon, Nauta and DeOliveira could be compelled to testify, since a pardon eliminates any chance of self-incrimination. Of course, Trump could just try to pardon himself, but that is fraught both politically and legally.
With Smith winding things up, his final report will probably be submitted before the end of the year. There aren't likely to be many new revelations but it could include the unsealing of more evidence.
Thanks, A.R.!
Let us add that while the possibility of Trump eventually facing the music still exists, it's... not a high-probability outcome. First, the question of whether or not the statute of limitations was actually tolled would have to be resolved, and in a manner adverse to Trump. It would take many months, or possibly years, to work through all the appeals. And then, if the courts agree the cases can be revived, they would actually have to be tried. Needless to say, Team Trump would drag that out. Meanwhile, we are dealing with a defendant who in, say, 5-6 years, might not be alive, or might no longer be mentally competent. So, don't expect the President-elect to ever see the inside of a federal prison. A state prison, by contrast, is still possible. (Z)