Special counsel Jack Smith has filed a motion to drop his election subversion case and his classified documents case against President-elect Donald Trump, CNN first reported Monday.
Citing a longstanding rule from the Justice Department that it can’t charge a sitting president with a crime, Smith wrote in his six-page filing that “prosecution must be dismissed before the defendant is inaugurated” on Jan. 20, 2025.
Last year, Trump was indicted on four felonies in connection with his efforts to overturn the results of the 2020 presidential election, including the Jan. 6 attack on the U.S. Capitol. In a separate case, he was indicted on 37 felonies related to the mishandling of classified documents.
Earlier this month, Smith requested more time from U.S. District Judge Tanya Chutkan, who has been overseeing the election interference case, to make a decision about how to proceed following Trump’s election on Nov. 5.
“The Department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President,” Smith wrote in the filing, before asking Judge Chutkan to drop all charges. "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."
While the case requires dismissal "in this context," Smith added that presidential immunity is temporary and the case could be revived after Trump leaves office.
“The Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President,” Smith wrote. But, he added, constitutional immunity for sitting presidents does not require that the case be dismissed “with prejudice”
Smith and his team plan to resign before Trump takes office in January, The New York Times reported. The president-elect has repeatedly promised to fire Smith when he becomes President.
