Special Counsel Jack Smith Files Motion To Dismiss Jan. 6 Case

Special counsel Jack Smith on Monday filed a motion to dismiss President-elect Donald Trump’s Jan. 6 criminal indictment for allegedly defrauding the United States, conspiring to obstruct Congress when it met to certify the results of the 2020 election, and otherwise acting to “oppress, threaten and intimidate” voters.

Smith wrote that he made his decision because Department of Justice policy bars prosecuting a sitting president, regardless of the “gravity of the crimes charged, the strength of the government’s proof, or the merits of the prosecution.”

U.S. District Judge Tanya Chutkan granted the order in a brief two-page opinion just hours after it was filed.

The decision might have been far different had Trump not won the presidency for a second time earlier this month.

Right before Trump’s victory against Vice President Kamala Harris, Smith was preparing to square off with Trump and his attorneys in federal court in Washington, D.C.

The parties were expected to argue terms of Trump’s revised criminal indictment after the Supreme Court’s sweeping immunity decision in July.

Smith previewed some of the trial evidence in October. What he was willing to show publicly about the case to presiding U.S. District Judge Tanya Chutkan largely relied on the existing record of witness testimony and depositions taken by the House committee investigating the 2021 Capitol attack.

Trump was first indicted in the Jan. 6 case in August 2023. From the start, his lawyers repeatedly filed motions to delay or dismiss the case, hindering its progress until finally elevating the question of his immunity from prosecution to the Supreme Court.

A spokesperson for Trump on Monday called the motion to dismiss a “major victory for the rule of law.”

Smith also filed a motion to shut down the government’s appeal in the classified documents case in Florida. U.S. District Judge Aileen Cannon dismissed Trump’s criminal indictment there before it ever got to trial. To much controversy, Cannon ruled that Smith was not properly appointed as special counsel.

It was a historic decision to prosecute Trump criminally. He was the first U.S. president to face criminal charges. Monday’s motion would seem to spell the end entirely for the criminal case, but it’s worth noting that Smith asked to file the motion “without prejudice” ― meaning that technically speaking, charges can still be refiled after Trump leaves office.

Smith said Monday that the Justice Department’s Office of Legal Counsel — the entity that essentially gives the department its own legal advice — did not have conclusive guidance about whether a federal indictment returned against a private citizen prior to his election as president must be completely dismissed, or whether the charges can be held over until that person once again becomes a private citizen.

And while the department believes the Constitution requires the case to be dismissed before Trump is inaugurated ― “consistent with the temporary nature of the immunity afforded a sitting president,” as Smith wrote ― it does not require the case to be dismissed “with prejudice,” or dismissed without any hope of ever reopening it.

Chutkan wrote Monday in her opinion that “dismissal without prejudice is appropriate here.”

“When a prosecutor moves to dismiss an indictment without prejudice, ‘there is a strong presumption in favor’ of that course,” she wrote, citing case law from 2011 and 1989. “A court may override the presumption only when dismissal without prejudice ‘would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.’”

“As already noted, there is no indication of prosecutorial harassment or other impropriety underlying the Motion, and therefore no basis for overriding the presumption — and Defendant does not ask the court to do so,” Chutkan wrote.

She added that dismissal without prejudice is consistent with the understanding that “immunity afforded to a sitting President is temporary, expiring when they leave office.”

Trump vowed in October that he would fire Smith in “two seconds” if he retook the White House. Since Trump’s victory over Harris, members of his transition team have reportedly told The Washington Post that Trump intends to investigate the 2020 election during his second term.

Trump lost that election to President Joe Biden, and the nation’s intelligence agencies ― as well as Bill Barr, Trump’s own attorney general at the time ― confirmed the contest was not marred by fraud. Nonetheless, Trump has clung to the claim that he won the 2020 election, and has insisted that the criminal election subversion case, as well as every other criminal charge he has ever faced, is a “witch hunt,” a political persecution or a “weaponization” of federal agencies.

The now-president-elect celebrated the dismissal on Monday, writing that the indictments were a “low point” in our country.

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As a result of the attack on the Capitol on Jan. 6, 2021, four people died at the Capitol, and in the days that followed, five police officers died. A mob of Trump’s supporters, among them hundreds of far-right extremists including members of the Proud Boys and Oath Keepers, descended on the complex that day and ran over barriers, assaulted police and defaced the building. Over 1,500 people have been prosecuted in connection to Jan. 6.

Trump has floated the idea of pardoning Jan. 6 rioters once he takes office. It is unclear if those pardons would be available to all or if they would be issued only to individuals who were not violent. Lawyers for members of the Proud Boys who were convicted of seditious conspiracy — the most serious charge to emerge in all Jan. 6 cases — have already suggested they want a pardon. An attorney for imprisoned Proud Boys leader Joe Biggs told The New York Times just a week ago that blanket pardons would inspire unity.

Trump’s latest escape from criminal accountability will not impact what happens to Jan. 6 defendants until their fate returns to his hands. Immunity rules do not apply to them, unlike Trump.

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