Why is US prosecutor Jack Smith dropping charges against Trump?

A federal judge in Washington, DC, has dismissed a criminal case filed against President-elect Donald Trump in 2023 in relation to interference in the result of the 2020 election. The case against Trump ended after US Special Prosecutor Jack Smith requested that it be dismissed on the basis of a US Department of Justice policy that prohibits prosecuting a president while in office.

A separate federal criminal case relating to the mishandling of classified documents, also filed by Smith, was previously dismissed on July 15 by US District Judge Aileen Cannon in Florida. She cited constitutional grounds. In her decision, Judge Cannon declared that the appointment of special counsel Jack Smith violated the Constitution.

Smith had appealed this to the Court of Appeals for the 11th Circuit, but has now also asked for the case against Trump to be dismissed. The appeal in regards to his co-defendants will continue.

In a six-page submission to the court on Monday, Smith’s statement read:?“It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President.”

What were the two federal cases against Trump?

Interference in the 2020 election

In 2022, Smith was tasked by a US House of Representatives committee with investigating Trump’s alleged attempt to overturn the results of the 2020 election before the?bloody assault on the US Capitol?by his supporters on January 6, 2021.

The following year, Smith charged Trump with four felony counts, including conspiracy to defraud the US and conspiracy to obstruct an official proceeding.

Federal Judge Tanya Chutkan scheduled a trial in Washington, DC, for March, which was delayed after Trump said he should be entitled to immunity as a former president.

In July, the Supreme Court sided with Trump’s arguments, granting presidents broad immunity from prosecution, even for crimes of a personal nature in which links to the job could be proven.

Smith refiled the case in August, arguing that the alleged crimes bore no relation to the former president’s official duties.

Top-secret documents case

In a case filed in Florida in 2022, Smith also charged Trump with hoarding top secret documents at his Mar-a-Lago estate in Florida and obstructing FBI efforts to recover them.

FBI agents did?recover more than 100 classified records, and Trump’s lawyers eventually handed over four more documents that had been found in his bedroom.

In July, Florida-based Federal Judge Aileen Cannon, who was nominated to the bench by Trump in 2020, dismissed the charges, ruling that Smith’s appointment as a prosecutor had not been approved by Congress and was, therefore, unconstitutional.

Why are the charges for election interference being dropped now?

In short, bringing criminal charges against a sitting president would be unconstitutional, as it would impede the chief executive’s capacity to effectively lead the country.

Former federal prosecutor Neama Rahmi told the BBC, “It’s well-established that a sitting president can’t be prosecuted.”

The submission Smith filed on Monday stated: “After careful consideration, the Department has determined that OLC’s [the Department’s Office of Legal Counsel] 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.”

Although the charges have been dropped, Smith made it clear in the submission that dismissal does not mean that the prosecution did not have a solid case against Trump.

He said the decision to dismiss the case “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”.

Could this case come back in the future?

The final page of the Smith submission states the following:

“For the foregoing reasons, the Government respectfully moves under Federal Rule of Criminal Procedure 48(a) for dismissal without prejudice of the superseding indictment.”

While “dismissal without prejudice” means the case has been dismissed, it does not mean the case had no merits. Rather, it allows for the possibility of refiling the case if the underlying issues that prompted the dismissal are resolved.

However, legal experts say any incoming attorney general – who would be nominated by Trump himself – could order “dismissal with prejudice” essentially disallowing any further prosecutions after Trump completes his term as president.

Will cases continue against Trump’s co-defendants?

Yes. The proceedings involving his co-defendants in the classified documents case, Walt Nauta and Carlos De Oliveira, can continue. In the submission, Smith emphasised that they are not protected by any legal doctrine granting temporary immunity to a sitting president.

In a statement, John Irving, a lawyer for De Oliveira, said: “The Special Counsel’s decision to proceed in this case even after dismissing it against President Trump is an unsurprising tribute to the poor judgement that led to the indictment against Mr De Oliveira in the first place. Just because you can doesn’t mean you should. If they prefer a slow acquittal, that’s fine with us.”

Does Trump still face other legal cases?

Yes, he has also been facing two state criminal cases and a number of civil cases.

Stormy Daniels ‘hush money’ case

Having been found guilty by a Manhattan jury in May of all 34 counts against him relating to falsifying business records?to cover up a hush money payment to porn star?Stormy Daniels before the 2016 presidential election, Trump will be the first president to enter the White House with a criminal record. Theoretically, Trump could be handed a four-year prison sentence but, crucially, he has not been sentenced yet.

On November 19, the Manhattan District Attorney’s Office informed Judge Juan Merchan that it would postpone Trump’s sentencing, originally scheduled for November 26.

Judge Juan Merchan then postponed Trump’s sentencing indefinitely on November 22 and allowed the president-elect to submit a motion seeking dismissal of the case.

Georgia ‘racketeering’ case

Trump has also been facing criminal charges over his efforts to overturn the 2020 election result?in the battleground state of Georgia.

Joe Biden narrowly won the state and the presidency, but Trump and his allies allegedly went on to spread misinformation about voter fraud, leaning on Georgia officials and lawmakers to reverse the result.

Last year, Fulton County District Attorney Fani Willis accused Trump and 18 co-defendants of launching a “criminal enterprise” to keep the former president in power, basing the charges on state racketeering laws designed to tackle mobsters.

But the trial took on the atmosphere of a soap opera after revelations that Willis had a romantic relationship with special prosecutor Nathan Wade, a man she had hired. In January, Michael Roman, one of Trump’s co-defendants, filed a motion accusing her of impropriety.

In March, Fulton County Superior Court Judge Scott McAfee ruled that Willis could stay if Wade left. Wade promptly tendered his resignation, enabling Willis – rebuked by the judge for her “tremendous” lapse in judgement – to continue prosecuting the case.

Earlier that month, McAfee had?dismissed?six of the 41 counts in the Georgia indictment. All six focused on whether Trump and his co-defendants solicited elected officials to violate their oaths of office in their bid to overturn the election result.

Trump and eight of his co-defendants in the case then asked a Georgia appeals court to disqualify Willis over her alleged misconduct. Oral arguments were scheduled for December 5.

It is unclear if the hearing will go ahead. But even if Willis remains on the case, legal experts said it is unlikely she will be able to advance the case against Trump while he is in office.

Civil cases against Trump

Several lawsuits against Trump have been filed, including by US Capitol Police officers and members of Congress, over his alleged role in inciting the riots and incursion into the Capitol building before the certification of Joe Biden as the new president on January 6, 2021.

The appeals are also still pending against a court’s January 2024 finding that?Trump was liable for sexually abusing and defaming E Jean Carroll. She sued him in 2023 for sexual assault and defamation after he branded her “a liar” for speaking about the incident which happened in the 1990s. Trump was ordered to pay Carroll more than $83m.

Also outstanding is Trump’s appeal against a $478m judgement that he and his company had manipulated property values fraudulently, alleged in a?civil fraud case brought by the?New York attorney general, Letitia James.

Following confirmation that Trump had won the election earlier this month, James said, “We’ve been here before. We’ve faced this challenge before and we’ve used the rule of law to fight back – and we are prepared to fight back once again.”

How has Trump and his team reacted to news of the latest case dismissal?

In classic Trump fashion, on Monday he took to social media platforms X and Truth Social to make a proverbial “victory lap”, characterising the indictments as “empty and lawless”.

These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought. Over $100 Million Dollars of Taxpayer Dollars has been wasted in the Democrat Party’s fight against their Political Opponent, ME. Nothing like…

— Donald J. Trump (@realDonaldTrump) November 25, 2024

“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!” he wrote on Truth Social.

“If Donald J Trump had lost an election, he may very well have spent the rest of his life in prison,” JD Vance wrote on X. “These prosecutions were always political. Now it’s time to ensure what happened to President Trump never happens in this country again.”

Trump’s communications director, Steven Cheung, said in a statement on Monday, “Today’s decision by the DOJ ends the unconstitutional federal cases against President Trump, and is a major victory for the rule of law.”

Many of Trump’s legal team have been rewarded with nominations to significant positions in Trump’s new administration following his recent election victory.

Trump has nominated Todd Blanche, his lawyer in the high-profile hush-money case, for the role of deputy attorney general. This position, which ranks second in the Justice Department hierarchy, is still subject to Senate approval.

Emil Bove, a member of Trump’s legal team, has been tapped for the position of principal associate deputy attorney general. He will also serve as acting deputy attorney general, a role that bypasses the need for Senate confirmation.

Trump also intends to nominate John Sauer for the position of US solicitor general. Sauer recently gained prominence as the lawyer who successfully argued in the Supreme Court earlier this year that Trump should be entitled to broad immunity from prosecution. That ruling placed a major obstacle in the way of Jack Smith’s federal case against him and meant there would be little prospect of a trial before the November election.

Can Trump pardon himself?

Following his re-election victory on November 5, Trump will be the first convicted felon – from the Stormy Daniels case – to occupy the White House. However, while the soon-to-be president has the power to pardon others, it is unclear if he has the absolute power to pardon himself.

Although the Constitution does not explicitly say a president can or cannot pardon himself, according to legal experts, a “self-pardon” would not be illegal.

However, a 1974 Justice Department memo, penned by Acting Assistant Attorney General Mary Lawton, tackled the controversial question of presidential self-pardons, stating that “no one may be a judge in his own case”.

While acknowledging the extensive nature of presidential pardoning powers, the memo emphasised that these powers are not “absolute”. It is likely, therefore, that any attempt by Trump to pardon himself would result in legal challenges and a definitive Supreme Court ruling would ensue.