Special counsel John L. “Jack” Smith sought Monday to dismiss the two federal criminal cases against Donald Trump, citing internal Justice Department opinions about prosecutions of a president.
Smith asked judges in Washington and Florida to dismiss the cases, pointing to the Office of Legal Counsel’s new determination that the case had to be dropped in such an “unprecedented” situation of a federal defendant winning the presidency.
“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,” the filing states.
“But 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,” the filing states.
The special counsel’s office consulted with the OLC, whose interpretation of constitutional questions such as those raised here is binding on DOJ prosecutors, Smith wrote.
“After careful consideration, the Department has determined that OLC’s 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,” the filing in the Washington case said.
Smith’s moves, if accepted, would not prevent a future prosecutor from pursuing charges against Trump after he leaves office. Also, Smith argued that he otherwise stood behind the case.
“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,” the filing said.
The requests are expected to officially end two of the most perilous legal battles for the former president following his 2024 reelection victory. Smith earlier this month successfully sought to freeze the Washington case after Trump’s victory.
The filings noted that Trump’s legal team did not object to the moves. In a statement, incoming White House Communications Director Steve Cheung praised the moves as a legal victory.
“The American People and President Trump want an immediate end to the political weaponization of our justice system and we look forward to uniting our country,” Cheung’s statement said.
Trump made the prosecutions a major part of his presidential campaign, promising revenge against prosecutors who pursued cases against him.
Trump successfully delayed the Washington case, and another brought by Smith in Florida, for months in the run-up to the election. That included a decision earlier this year by the Supreme Court that found presidents are immune from federal charges for most official acts.
In the Washington case, Trump was charged with masterminding a broad effort to overturn his loss in the 2020 election. That included alleged efforts to have states stop counting ballots, organizing slates of false electors, spurring the Jan. 6, 2021, attack on the Capitol and other crimes.
Prior to Trump’s victory, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia had said there would likely be years of litigation over legal issues in the case, including other Supreme Court rulings, prior to a trial.
In the Florida case, Trump was charged with keeping some of the nation’s most closely guarded secrets unsecured in his Florida club, and a ruling to toss those charges is currently on appeal to the U.S. Court of Appeals for the 11th Circuit.
Smith’s filing there noted that the case would still proceed against two other defendants in the case, who were charged alongside Trump for their alleged roles in mishandling classified documents.
The future of the case against those two is uncertain however, as Trump has vowed to fire Smith “within two seconds” of taking office.
Smith’s moves come as part of winding down the special counsel’s office ahead of an expected report on the cases, and multiple news reports suggest he will resign as special counsel before Trump takes office.
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