Trump said he would fire Smith when he takes office again, breaking with previous norms around special counsel investigations.
“The (Justice) Department’s position is that the Constitution requires that this case be dismissed prior to the inauguration of the defendants,” Smith wrote of the election subversion case in a six-page filing to US District Court Judge Tanya Chutkan in Washington, DC.
“This outcome is not based on the merits or strength of the case against the defendant.”
Smith’s prosecution of Trump over the past two years for attempting to subvert the 2020 presidential election and his mishandling of classified documents represents a unique chapter in American history: never before has a former White House occupant faced federal criminal charges.
Although the election subversion case culminated this summer in a landmark Supreme Court ruling granting Trump certain presidential immunity from prosecution, Trump’s delay strategy in the case ensured that the trial never began before the November election.
In the election case Trump faced in Washington, DC, Smith accused the former president of his efforts to overturn his 2020 election defeat, a plot that culminated in the attack on the Capitol on January 6, 2021.
“The Government’s position on the merits of prosecuting the defendant has not changed,” Smith said in the filing.
Chutkan was deciding how much Trump’s conduct at the center of the case would be protected by immunity after prosecutors presented their arguments last month why the Supreme Court’s ruling should not affect the case.
After Trump was re-elected this month, prosecutors asked Chutkan to pause a series of post-election deadlines in the case while they weighed their next steps.
In the documents case filed in Florida, Trump is accused of allegedly taking classified national defense documents from the White House after he left office and resisting government efforts to recover the materials.
Trump pleaded not guilty to all charges in both cases.
In a statement, Trump spokesman Steven Cheung called the move “a huge 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,” Cheung added.
Trump employees still face an appeal
Smith said in a filing to a federal appeals court that prosecutors are maintaining their case of mishandling classified documents against two Trump employees.
The case is before the 11th U.S. Circuit Court of Appeals, which is considering Judge Aileen Cannon’s order dismissing all charges.
Co-defendants are Walt Nauta and Carlos de Oliveira, who work for Trump and are accused of helping the former president obstruct a federal investigation into sensitive government documents taken from his first administration.
Both pleaded not guilty.
“The special counsel’s decision to pursue this case, even after dismissing it against President Trump, is an unsurprising tribute to the poor judgment that led to the indictment of Mr. De Oliveira in the first place,” John Irving, De Oliveira’s defense attorney, said.
“Just because you can, doesn’t mean you should. If they prefer a slow acquittal, that’s fine with us.”
Nauta’s attorney, Stanley Woodward, did not immediately respond to a request for comment.
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Dismissal without prejudice
Smith said he is seeking a dismissal of the charges against the president-elect “without prejudice,” which would leave the door open to re-indictments in the future, calling the presidential immunity Trump will have “temporary.”
Smith said he had consulted with Justice Department lawyers on the matter and that they were also weighing the possibility of pausing the case until Trump no longer has presidential immunity protecting him.
Ultimately, however, the ministry’s Office of the Legal Adviser concluded that the ban on criminal prosecution of current presidents was “categorical,” including indictments filed before the defendant took office.
“Accordingly, the Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And while the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity enjoyed by a sitting president, it does not require dismissal with prejudice.” Smith wrote.
State cases will continue against Trump
As president, Trump will not have the authority to interfere in the prosecution of him by state authorities in Georgia and New York.
However, in those cases, the courts will still have to resolve immunity issues and issues raised by his return to the White House.
Last week, the judge overseeing Trump’s money laundering case in New York delayed his sentence indefinitely.
A jury in that state convicted Trump earlier this year of 34 counts of falsifying business records to cover up secret payments during the 2016 campaign to adult film star Stormy Daniels, who allegedly had a previous affair with the president-elect. Trump denies the affair.
And Trump is still working to stave off prosecution in Georgia, where he is a defendant in a sweeping case accusing him and several allies of trying to overturn his 2020 election loss in the Peach State.