(WASHINGTON) — Special counsel Jack Smith has moved to dismiss his federal election interference case and his classified documents case against President-elect Donald Trump due to a long-standing Justice Department policy that bars the prosecution of a sitting president, not because of the merits of the charges.
Nearly 16 months after a grand jury first indicted Trump over his alleged efforts to unlawfully overturn the results of the 2020 election, Smith has asked U.S. District Judge Tanya Chutkan to throw out the case ahead of Trump’s impending inauguration, according to a motion filed Monday.
“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,” Smith said in his motion, in which he said, “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.”
“Confronted with this unprecedented situation, the Special Counsel’s Office consulted with the Department’s Office of Legal Counsel (OLC), whose interpretation of constitutional questions such as those raised here is binding on Department prosecutors. 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,” said the motion.
Earlier this month, Judge Chutkan cancelled the remaining deadlines in the case after Smith requested time to “assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy” following Trump’s election.
Trump last year pleaded not guilty to federal charges of undertaking a “criminal scheme” to overturn the results of the 2020 election by enlisting a slate of so-called “fake electors,” using the Justice Department to conduct “sham election crime investigations,” trying to enlist the vice president to “alter the election results,” and promoting false claims of a stolen election during the Jan. 6 attack on the Capitol, all in an effort to subvert democracy and remain in power.
Smith subsequently charged Trump in a superseding indictment that was adjusted to respect the Supreme Court’s July ruling that Trump is entitled to immunity from criminal prosecution for official acts undertaken as president.
Judge Chutkan had been in the process of considering how the case should proceed in light of the Supreme Court’s immunity ruling.
Smith had faced filing deadlines of Dec. 2 for both the election interference case and the classified documents case against Trump, after Smith’s team requested more time to determine how to face the unprecedented situation of pending federal cases against someone who had just been elected to the presidency.
Trump pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, before U.S. District Judge Aileen Cannon dismissed the case in July over her finding that Smith was improperly appointed to his role. Smith appealed that ruling to the 11th Circuit Court of Appeals, arguing that legal precedent and history confirm the attorney general’s ability to appoint special counsels, but after Trump’s reelection he asked the court to pause the appeal until Dec.2, in the same manner as the election interference case.
Getting Monday’s filing in a week ahead of schedule now raises the question of whether Smith will be able to beat the clock to officially close his office down and submit his final report to Attorney General Merrick Garland — as is required of him per the DOJ’s special counsel regulations — before Inauguration Day.
The final report will have to go through a classification review by the intelligence community, a process that can sometimes take weeks before it is approved for any kind of public release.
Attorney General Garland has made clear in appearances before Congress and public statements that he is committed to making public the final reports of all Special Counsels during his tenure, which included reports by Special Counsel Robert Hur and Special Counsel John Durham.
Special Counsel David Weiss is still continuing his investigation and is set to take his case against an FBI informant charged with lying about President Biden and his son Hunter to trial in California next week. It’s unclear whether he will formally close his investigation down and submit a final report prior to Trump taking office.
This is a developing story. Please check back for updates.
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