Jack Smith Considers Ending Trump Cases Before Inauguration

6 Nov at 3:46 pm

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Jack Smith Considers Ending Trump Cases Before Inauguration \ Newslooks \ Washington DC \ Mary Sidiqi \ Evening Edition \ Special counsel Jack Smith is assessing the best approach for handling the two federal cases against President-elect Donald Trump in light of Department of Justice (DOJ) policy that precludes the prosecution of a sitting president. The cases, which involve Trump’s efforts to overturn the 2020 election and mishandling of classified documents, face significant delays and legal complexities as Trump prepares to take office.

DOJ and Special Counsel Smith’s Trump Cases Quick Looks

DOJ Policy Impact: DOJ norms prevent prosecuting a sitting president, leading Smith to consider ending the cases before Trump’s inauguration.
Key Charges: Trump is accused of conspiring to overturn the 2020 election results and unlawfully retaining classified documents.
Judicial Decisions: The classified documents case is stalled following a dismissal by a Trump-appointed judge, with appeals ongoing.
Supreme Court Ruling: A July decision provided broad immunity to former presidents for actions taken in office, complicating Smith’s prosecution strategy.
Potential Showdown: Trump has vowed to fire Smith if the cases persist into his presidency, adding pressure on the DOJ’s decisions.

Deep Look

Special counsel Jack Smith is considering how to conclude or pause two major federal cases against President-elect Donald Trump before he takes office in January, due to longstanding Department of Justice (DOJ) policy. This policy, based on decades-old legal opinions, states that a sitting president cannot be prosecuted. Smith’s decision, reported first by NBC News and later confirmed by a person familiar with the deliberations, reflects the delicate balance the DOJ must maintain between legal accountability and executive privilege.

Smith, appointed in 2022 by then-Attorney General Merrick Garland, spearheaded investigations leading to charges against Trump in two pivotal cases. The first case accuses Trump of conspiring to overturn the results of the 2020 presidential election, culminating in the January 6 Capitol riot, which saw over 1,000 of Trump’s supporters convicted for related offenses. The second case involves Trump allegedly hoarding classified documents at his Mar-a-Lago estate and obstructing FBI attempts to retrieve them. Both cases have encountered significant legal and procedural obstacles, further complicated by Trump’s recent election win.

DOJ Policies and Presidential Immunity

The DOJ’s internal policy, rooted in a 1973 legal memo and reaffirmed during Bill Clinton’s presidency, dictates that sitting presidents are immune from criminal prosecution. This policy was designed to prevent a president’s capacity to govern from being impeded by criminal trials. As Trump prepares to assume office after defeating Vice President Kamala Harris, the DOJ believes it must adhere to these guidelines, potentially halting the current federal cases against him.

By winding down these cases before Trump’s January inauguration, Smith would avert a potential constitutional conflict between prosecutorial independence and presidential powers. Trump has made clear his intentions to remove Smith from his role if he assumes the presidency while the cases remain active, increasing the pressure on the DOJ to resolve the cases preemptively.

Case Status and Legal Battles

The classified documents case faced a significant delay when U.S. District Judge Aileen Cannon, appointed by Trump, dismissed it in July on the basis that Smith’s appointment was legally flawed. Smith’s team appealed the decision to the 11th U.S. Circuit Court of Appeals in Atlanta, where it remains pending. The prolonged legal process highlights the challenges Smith faces in advancing the case, especially with Trump’s return to power looming.

The 2020 election interference case, initially set for trial in March 2024 in Washington, D.C., was similarly stalled after Trump’s legal team argued that he is entitled to immunity. In July, the Supreme Court, led by its conservative majority, ruled to expand immunity protections for former presidents concerning actions taken while in office. This ruling included any communications Trump had with the DOJ about alleged sham investigations during his efforts to challenge the 2020 election outcome. The court sent the case back to U.S. District Judge Tanya Chutkan to determine if any other allegations could proceed to trial.

In an attempt to keep the case moving, Smith’s team filed a detailed 165-page brief last month, presenting new evidence to argue that the acts detailed in the indictment were carried out by Trump in his capacity as a candidate, not as the sitting president. This distinction is crucial, as it could determine whether certain charges remain viable despite the broad immunity ruling. Trump’s legal team is expected to respond with their counterarguments, and any decision made by Judge Chutkan is likely to be contested, pushing the case back to the Supreme Court and delaying any potential trial for a year or more.

Strategic Considerations and DOJ’s Position

Should Smith decide to dismiss or pause these cases, it would be viewed as an effort to align with DOJ policy and prevent potential constitutional crises. Such a move, while controversial, would reflect an adherence to norms that prioritize maintaining governmental stability over pursuing active prosecutions of a sitting president. Critics may argue that ending the cases could set a concerning precedent for future administrations, potentially allowing presidents to evade legal scrutiny during their tenure.

However, proceeding with the cases could lead to unprecedented constitutional challenges, including possible conflicts between the executive branch and prosecutorial bodies, and could exacerbate public debates about the limits of presidential power and accountability. This complex interplay between legal standards and executive privilege has already sparked widespread discussions about the appropriateness of prosecuting former presidents who later regain office.

Trump’s Public Response and Future Implications

Trump has not shied away from addressing his intentions should the cases continue. He has repeatedly stated that he would fire Jack Smith “within two seconds” of assuming office if the special counsel’s cases remain active. This declaration raises the stakes for Smith and the DOJ as they deliberate the best path forward. The implications of such an action could stir significant controversy over the separation of powers and presidential overreach.

The Supreme Court’s broad ruling on presidential immunity, which strengthened Trump’s legal position, could embolden him to pursue further protections once in office. Legal experts anticipate that any new DOJ strategies in handling these cases will be closely watched, potentially setting new precedents for the balance between legal accountability and executive power.

Broader Context and Repercussions

The cases against Trump have already drawn intense public interest and international attention. Smith’s investigations have underscored the challenges of navigating high-profile cases involving a former president whose actions have significantly influenced American politics. If these cases are suspended or concluded, it could alter the narrative around presidential immunity and influence future DOJ strategies when dealing with political figures who regain office after facing legal challenges.

Smith’s decisions will likely shape future expectations for the DOJ’s handling of cases involving political leaders. The resolution of these cases—or lack thereof—may also affect how U.S. legal principles adapt to the realities of modern political dynamics.

Conclusion

As special counsel Jack Smith weighs how to handle these cases, the DOJ finds itself at the crossroads of policy, legal precedent, and political realities. The outcome could set far-reaching implications for presidential immunity, executive power, and the future of prosecutorial independence in cases involving sitting presidents.