Donald Trump gestures after speaking at a November 14, 2024 event at his Mar-a-Lago club.Alex Brandon/AP
Donald Trump has gotten away with causing a violent attack on the US Capitol on January 6, 2021, as part of scheme to overturn the 2020 election, hiding top secret documents from the federal government, and other alleged crimes.
Special counsel Jack Smith on Monday made official what Trump’s election victory made clear, moving to dismiss the election interference case in which Trump was charged with promoting conspiracies to defraud the United States, obstruct an official government proceeding, and deprive Americans of their civil rights through his attempts to stop Congress from certifying President Joe Biden’s victory. Smith said he was dropping the case due to a Justice Department policy that bars prosecuting a sitting a president.
“The Government’s position on the merits of the defendant’s prosecution has not changed,” Smith said in the filing.
The motion leaves Fulton County, Georgia District Attorney Fani Willis’ prosecution of Trump and various former aides as the only standing criminal case related to Trump’s efforts to subvert the 2020 election. Willis has vowed to continue that prosecution. But with her case mired in appeals proceedings related to Willis’ past romantic relationship with the prosecutor she picked to run the case, her odds of securing a conviction of the president-elect appear dismal.
Smith also moved Monday to dismiss his case against Trump for obstructing justice by hiding from the Department of Justice highly classified documents he had secretly removed from the White House. (Smith did not drop the charges against two Trump co-defendants.) Smith hopes to continue his appeal of a July ruling in which which Aileen Cannon, a notoriously pro-Trump district court judge in Florida, dismissed Smith’s case based on a legally unprecedented ruling that Smith’s appointment was invalid. But that appeal is aimed at preserving the legal standing of special counsel appointments and will not result in Trump’s continued prosecution even if Smith prevails.
Smith said that the January 6 and documents cases need not to be dismissed “with prejudice.” That leaves the theoretical prospect that they could be revived after Trump leaves office. But it’s unlikely the Justice Department would be willing or able to successfully renew either case eight years after the alleged crimes occurred.
The Manhattan district attorney’s office said last week that it would agree to postpone Trump’s sentencing in a case where he was convicted of falsifying business records as part of a criminal scheme to cover up payments made to buy the silence of porn actress Stormy Daniels, who has said she had sex with Trump in 2006. The district attorney Alvin Bragg has opposed efforts by Trump lawyers to have the case dismissed altogether.
These outcomes mean that Trump has avoided legal consequences for four separate cases in which he was indicted—including one in which he was convicted—despite receiving no acquittal or exoneration from a judge or jury.
That impunity, coupled with the Supreme Court’s highly controversial declaration that presidents enjoy “absolute immunity” from prosecution for official actions, appears set to enable Trump to pursue his goals—including using the Justice Department to prosecute critics—with few legal restraints.
After taking office, Trump reportedly plans to fire Smith’s entire legal team, including career attorneys typically protected from political retribution. Pam Bondi, a lobbyist and former Florida attorney general who Trump plans to nominate for US attorney general, has said prosecutors who brought cases against Trump “will be prosecuted.”
With a pass for alleged past crimes and a pliant Supreme Court, Trump in his second term may be the first US president to operate above the law. He will probably not be the last.