Jack Smith moved on Monday to end the federal proceedings of Donald Trump. In the DC affair, which was based on efforts to cancel the 2020 elections, Smith decided to reject the indictment without prejudice and judge Chutkan quickly granted the request. In the Florida case, on the basis of the inappropriate detention of classified documents in Mar-A-Lago, Smith moved to abandon Trump from the appeal in the process before the 11th circuit and the court also granted this request. Judge Cannon had already rejected this case without prejudice (which was the basis of the appeal), so withdrawing Trump from the appeal simply has the effect of leaving this dismissal in place.
Jack Smith special advisor
It is an extremely disturbing and discouraging development, of course, but it was inevitable once Trump won the elections. The layoffs have been required by the long -standing policy of the Ministry of Justice according to which an in office cannot be prosecuted. Even if the dismissal had not been necessary, Trump would have certainly dropped the business once he took office. As I wrote shortly after the elections, federal affairs were condemned by Trump’s victory. Everything left was to learn the details of the funeral arrangements.
The layoffs are without prejudice, which means that theoretically, business could be brought back once Trump is out of power. I don’t think anyone should really expect it to happen. Assuming that Trump serves his full four-year mandate, I don’t know how there would be legal or political appetite to resume prosecution in 2029, continue fighting and calls for presidential immunity, and perhaps business is tested when Trump is about 85 years old.
An additional obstacle would be the limitation period of five years. For the crimes which took place in 2021 and 2022, the limitation period will have worked when Trump will leave his functions. In his request in DC to reject Smith launched the idea that a judge could agree to take a break or “toll”, the limitation period because Trump could not be prosecuted during his functions. But although the equitable toll of prescription statutes in civil affairs is not uncommon, it is not clear that the doctrine applies in criminal affairs in the absence of an express statutory authority. In criminal proceedings, the prescription statutes are part of the protections of the regular procedure granted to defendants, to protect them from proceedings on the basis of too distant events.
The congress could have adopted a law providing that the limitation period against a president is interrupted while he is in office, but he did not do so. And he cannot pass one now (not that this congress would do it, or that Trump would sign it) and that he applies retroactively to Trump because of the constitutional ban against ex post facto Laws.
So, although some people cling to hope that cases may not be really over, I don’t think hope is realistic. It is a bitter pill to swallow, but the die was thrown once the voters chose to put Trump back in power.
Smith clearly indicated in its requests that the Special Council is fully supported by the bottom of these prosecution. They are not dismissed due to proof problems or legal theories. It is strictly because Trump will be president and will allow criminal cases to continue interfere with his functions.
In the case in Florida, Smith seeks to cancel the decision of the Cannon judge that the appointment of the special council was unconstitutional. Trump had two co-accused in this case, Walt Nauta and Carlos de Oliveira, who were accused of conspiracy with Trump to hinder the investigation into classified documents. Smith has not moved to drop the 11th call from the circuit, so the call is still alive for the moment. But I would expect that Trump takes up his duties, he will drop his attorney general and / or forgive Nauta and Oliveira.
This will mean that Cannon’s decision on the unconstitutionality of special advice will remain. It could be good with the Ministry of Justice Trump. But in any event, it is only the decision of a single district judge. It is not a binding precedent in any other court, not even for the other judges of the district court in Florida. It can remain like an isolated aberrant value.
Part of me had hoped that Smith would not drop the business or would not leave functions voluntarily, but would force Trump to reject the cases and fire him after taking office. This would at least establish for history that he was the first president and defendant to order that his own criminal proceedings are rejected. One of Trump’s first official presidential acts would be to obstruct justice. Why facilitate his task and do it now?
I think the probable response is that the deletion of cases now allows Smith to more easily prepare a final report before Trump takes up his functions. Special advice is required to prepare a confidential report for the Attorney General once their surveys are concluded – you probably remember the Mueller report of Trump’s first mandate. The Attorney General can then decide to make this report public. Merrick Garland has generally favored public disclosure of these reports.
Now that the cases are officially completed, Smith can prepare a detailed report on what he found in both cases and present it to Garland in time to make public before Trump takes up his duties. If the cases were still pending, there would be no basis for preparing a final report. Once Trump has taken office, he would abandon cases anyway, and the probability that Smith’s conclusions are made public would probably be zero.
I think that having Smith’s report is important for the historical file. It is not clear how many new information will be revealed, because a large part of the facts of these two cases are already public knowledge. But now that the cases will not be concluded, I think it is important for Smith to create a detailed public file of what he has found. Presumably, this is the plan and Garland will publish the report before Trump takes up his duties.
Smith’s actions do not directly affect state lawsuits in Georgia and New York. The Georgia affair remains bogged down in calls as to Di Bani Willis should have been disqualified. The Georgia Court of Appeal recently canceled, without explanation, the oral arguments of December 5 in this call. It is difficult to read these tea leaves. The court apparently decided that the oral argument would not be useful, but that does not tell us in which direction the court is looking.
If the Court of Appeal disqualifies Willis, the case dates back to a potential reallocation to a new prosecutor. Given the policy in Georgia that may never occur, or the new prosecutor could decide to drop the case. If the prosecutors survive calls, the case could potentially be judged against other defendants, without Trump. Given the size of the housing and the number of problems that would almost certainly be at least a year or two.
In New York, as I wrote here, it is still possible for judge Merchan to condemn Trump during his thirty-four convictions for crime before he took office.
Merchan established a deadline of December 9 so that all memories were deposited concerning Trump requests in terms of rejection according to presidential immunity and the fact that he won the election. It is a fairly fast calendar which always allowed Merchan to refuse requests and to have an audience for determining the sentence before January 20. As I have argued in this position, the judge could suspend the execution of any penalty until Trump has left his duties and the calls could not continue without impact on the duties of Trump. I don’t know how likely it is – probably not very – but it remains an option.
The main thing is that there are not many good news when it comes to seeing Trump held responsible for his criminal conduct. The best we can do now is to look to see what’s going on in New York and look for a Jack Smith report.
