Special counsel moves to abandon election interference and classified documents cases against Trump

Special counsel Jack Smith on Monday sought permission from U.S. courts to abandon the two federal cases against President-elect Donald Trump, likely putting an end to the lengthy investigations that never produced a trial but led to enduring changes in the legal landscape over a president’s immunity from prosecution.

U.S. District Judge Tanya S. Chutkan quickly agreed to dismiss the federal election interference charges brought in D.C. without prejudice, leaving open the narrow possibility that charges could be brought again once Trump’s concludes his second term in the White House.

In his motion, Smith said he “stands fully behind” the allegations in the indictment but that Justice Department guidelines made clear he could not prosecute a sitting president.

Smith separately filed a motion in the U.S. Court of Appeals for the 11th Circuit on Monday, asking to drop Trump as a co-defendant from the special counsel’s appeal of a ruling in the case over Trump’s alleged mishandling of classified documents. U.S. District Judge Aileen M. Cannon dismissed that indictment this summer, breaking with legal precedent to agree with Trump’s lawyers that Smith was unlawfully appointed.

Trump responded to the special counsel’s motions on social media, saying the underlying cases were “empty and lawless” and should “never have been brought.” The Washington Post reported Friday that the president-elect plans to fire the entire team that work with Smith, including career attorneys typically protected from political retribution, according to two individuals close to Trump’s transition.

“It was a political hijacking, and a low point in the History of our Country that such a thing could have happened, and yet, I persevered, against all odds, and WON. MAKE AMERICA GREAT AGAIN!,” Trump wrote on his social media platform, Truth Social.

Trump was accused in the classified documents case of hoarding secret government documents at Mar-a-Lago, his home and private club; he and co-defendants, Carlos De Oliveira and Waltine “Walt” Nauta are accused of trying to obstruct government efforts to retrieve the material.

Smith asked the appeals court to remove Trump from the case but keep his co-defendants, which could allow the appeal to continue after Trump returns to the White House.

Once Trump won the election, Smith had few options to keep either federal case alive. He plans to resign before Trump is president, preventing Trump from delivering on his promise to fire him, people familiar with his plans have said.

Before that, it’s possible that Smith could deliver to the attorney general a special counsel report outlining the findings of the investigations. It would then be up to Attorney General Merrick Garland to make some version of it public, though he has signaled in other investigations he believes in releasing special counsel report.

By dismissing the D.C. indictment without prejudice, Chutkan left open the possibility that prosecutors could again bring charges once Trump leaves office after his second White House term, although steep hurdles would remain.

“Here, Defendant consents to the dismissal, and there is no indication that the dismissal is ‘part of a scheme of “prosecutorial harassment” ’ or otherwise improper. Rather, the Government explains that it seeks dismissal pursuant to Department of Justice policy and precedent. The court will therefore grant the Government leave to dismiss this case,” Chutkan wrote in her two-page order

Smith’s filing relies heavily on his reading of Justice Department memos from the Office of Legal Counsel on president’s criminal liability. One of the memos suggests that a future court could decide to pause the statute of limitations on Trump’s crimes. That decision, which would likely be reviewed by a higher court, would leave open the possibility that prosecutors could again bring the election interference charges against Trump when he leaves office in 2029.

But the Constitution has few limitations on presidential pardon powers, and legal experts said it’s possible that once Trump is in office, he could try to do something that has never been tested before: preemptively pardon himself to foreclose the possibility of legal jeopardy in the future.

Trump had faced four counts related to conspiring to obstruct the 2020 election results. Smith’s filing defended those charges, even as he acknowledged.

“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,” the filing states. “Based on the Department’s interpretation of the Constitution, the Government moves for dismissal without prejudice of the superseding indictment.”

The unprecedented case — which accuses Trump using false claims of vote fraud to pressure federal, state and local officials to change election results and deny the American people their right to have their votes respected — hit obstacle after obstacle since the August 2023 indictment.

Trump’s legal team filed a host of challenges, freezing the proceedings for months and eventually winning a broad ruling from the Supreme Court that presidents are generally immune from prosecution for official acts.

The Supreme Court decision pushed Smith to file a superseding indictment against Trump, keeping the same four charges, but paring down the allegations in an attempt to define what justices said could be critical exceptions to the general rule.

In the Florida classified document case, Justice Department officials feared that Cannon’s ruling could jeopardize not just future special counsels, but also any federal prosecutor or senior official serving in a temporary position, The Post reported this summer.

Prosecutors had wanted to convince an appeals court to overturn Cannon’s ruling not only to resurrect the classified-documents case, but also to protect Justice Department appointments during the Trump administration and beyond.

Keeping the appeal alive with Trump’s co-defendants allows the Justice Department to possibly win a ruling that overturns the precedent set by Cannon. But if there is no movement in the appeal before Trump is sworn-in on Jan. 20, it will be up to Trump’s Justice Department to decide whether to drop or proceed with the appeal.