“Without Prejudice:” Jack Smith Moves to Dismiss the DC Case
Jack Smith has moved to dismiss the DC case against Donald Trump. OLC has found that the categorical prohibition on the federal indictment of a sitting President means DOJ cannot sustain the indictment against Trump.
OLC concluded that its 2000 Opinion’s “categorical” prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office. 2000 OLC Opinion at 254.1 Accordingly, the Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice. Cf. id. at 255 (“immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment”). This outcome is not based on the merits or strength of the case against the defendant
But OLC does not require dismissing the indictment with prejudice.
That means if Congress were to decide to impeach Trump on these issues, he could again be charged (through January 6, 2026).
Though it’s not yet clear whether Smith will dismiss the appeal against Walt Nauta and Carlos De Oliveira in Florida, this clears the way for Smith to file a report on what he found.
Update: In the 11th Circuit, Smith has moved to dismiss the appeal without prejudice against Trump but not his two co-defendants.
Historians, make special note of this date, the day the presidency was replaced by a lawless oligarchy.
I thought that day was jan 20, 2001. After Scalia and O’Conner overturned the the vote in Florida.
With hanging chads
swingin’ in the wind
The arc of history
balanced on a limb
Awaiting a puff
of original sin
That 911
was the message within
I understand but do not agree with the requirement that the indictment be dismissed. The logic seems to be that it would distract from the President’s primary duties, were he required to defend himself in court during his term of office. My view would be that that depends on the alleged crime, especially if the alleged crime(s) related to illegalities committed to obtain or maintain office.
But so long as DoJ has moved to dismiss the case, it shouldn’t matter whether it is in fact dismissed before Trump’s inauguration. The executive branch has no control over how or how long it takes the judiciary to make decisions. That requirement seems designed to protect the DoJ more than the President.
If Donnie hadn’t spent so much time delaying it, it could have been settled before New Years. Has OLC even noticed that fact?
That’s false. SCOTUS determined this, 100%.
Cmon, EOH, you’re smarter than that.
You dismiss now, you write a report. You don’t dismiss now, you don’t get a report.
So that report would contain the Declination Decision you posted about on 11/18?
Yes. I would EXPECT that the report would include some surprises.
How Trump can be protected from these charges without the limitation period also being tolled is beyond my understanding.
Statutes of limitation – specific legislation – are not designed to deal with criminality at such high levels in govt. A background assumption seems to be that the political process would prevent that. Not in the Age of Trump, apparently. He has managed to corrupt all three branches of govt and found an entire party willing to help him do it.
The Corruption Club. John Roberts is President.
Even if he were impeached again for this stuff there would still not be 67 senators willing to convict and remove him from office.
These cases were DOA once Trump won. The new DOJ would have to make a decision to continue the cases which was never going to happen. And Trump can just pardon everyone, maybe even himself, anyway.
The TV talking heads are debating whether the Trump DOJ will continue the Special Counsel appeal triggered by Canon’s ruling. Fighting it means taking a stand against one of Trump’s favorite judges. Letting it remain means he can no longer appoint his own Special Counsels for his Retribution Tour.
Virtually everyone is missing the Hunter Biden issue, I guess assuming Biden will pardon him.
If he’s still out there with an appeal, DOJ will have a difficult time defending BOTH his prosecution and opposing Nauta’s.