A few moments ago, Jack Smith and his co-counsel filed a motion to withdraw from the Florida case:
Pursuant to Federal Rule of Appellate Procedure 27 and Eleventh Circuit Rule 27-1, the United States of America moves to withdraw from this case the following attorneys: Jay I. Bratt, David V. Harbach, II, James I. Pearce, John M. Pellettieri, and Cecil W. VanDevender. Those attorneys are associated with the Special Counsel's Office, which initiated the criminal prosecution from which this appeal arose. The Special Counsel has now referred this case to the United States Attorney's Office for the Southern District of Florida, which has separately entered an appearance.
The motion did not state whether the defendants oppose the withdrawal.
The U.S. Attorney for the Southern District of Florida has made an appearance.
This move was expected. Smith has already announced that he would no longer prosecute President Elect Trump, based on the Department's reading of the policy against prosecuting the sitting President. However, Smith has left open the possibility that the other two defendants can still be prosecuted. And it seems the U.S. Attorney will cary those prosecutions forward. One would expect that President Trump will promptly pardon both defendants, so this case may not go very far.
Of course, the indictment was secured by Jack Smith. If he was not properly appointed to his position, and lacked the authority to obtain a criminal indictment, then there may still be a constitutional problem. And referring the case to the U.S. Attorney may not cure that problem. Seth and I have addressed this issue before, and we may do so again.
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