“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.
Update: Judge Chutkan grants Jack Smith’s request. How is notable: she focuses on defending the decision to dismiss without prejudice.
Federal Rule of Criminal Procedure 48(a) provides that before trial, the Government “may, with leave of court, dismiss an indictment.” The “‘principal object of the “leave of court” requirement’ has been understood to be a narrow one—‘to protect a defendant against prosecutorial harassment . . . when the [g]overnment moves to dismiss an indictment over the defendant’s objection.’” United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016) (quoting Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977)).1 Here, Defendant consents to the dismissal, Motion at 1, and there is no indication that the dismissal is “part of a scheme of ‘prosecutorial harassment’” or otherwise improper, Fokker Servs. B.V., 818 F.3d at 742 (quoting Rinaldi, 434 U.S. at 29 n.15). Rather, the Government explains that it seeks dismissal pursuant to Department of Justice policy and precedent. Motion at 2–6. The court will therefore grant the Government leave to dismiss this case.
Dismissal without prejudice is appropriate here. When a prosecutor moves to dismiss an indictment without prejudice, “there is a strong presumption in favor” of that course. United States v. Florian, 765 F. Supp. 2d 32, 34 (D.D.C. 2011). A court may override the presumption only when dismissal without prejudice “would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.” Id. at 35 (quoting United States v. Poindexter, 719 F. Supp. 6, 10 (D.D.C. 1989)). As already noted, there is no indication of prosecutorial harassment or other impropriety underlying the Motion, and therefore no basis for overriding the presumption—and Defendant does not ask the court to do so. See Motion at 1. Dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office. Id. at 6 (citing Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 225 (Oct. 16, 2000)).
Some courts in this district have advanced a broader view of the “leave of court” requirement. For instance, one concluded that “a judge may deny an unopposed Rule 48(a) motion if, after an examination of the record, (1) she is not ‘satisfied that the reasons advanced for the proposed dismissal are substantial’; or (2) she finds that the prosecutor has otherwise ‘abused his discretion.’” United States v. Flynn, 507 F. Supp. 3d 116, 130 (D.D.C. 2020) (quoting United States v. Ammidown, 497 F.2d 615, 620–22 (D.C. Cir. 1973)). Even under that broader interpretation, however, the court finds no reason to deny leave here.
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.
I’m feeling tremors of “Fitzmas!” in my limbic system.
Planning to avoid staircases.
What I missed is that he can’t issue his report until after the dismissal is effective. Presumably, then, that’s also why Smith chose not to adopt Juan Merchan’s approach and suspend proceedings indefinitely, as argued by Robert Reich. Reich misses that, while Trump should not be able to affect Merchan’s state court case, he can do what he wants regarding a federal prosecution.
https://robertreich.substack.com/p/the-special-counsel-jack-smith-just
Yes, he must not have anything to distract him from watching Fox and playing golf.
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.
Joe’s pledge not to interfere in Hunter’s case might work in normal times. But he and his advisers should be mindful that Trump’s restraint is nonexistent, as is his willingness to abide by legal norms and standards, and that his need for unbounded revenge is bottomless.
He would want a framework that helps others, too. His team have about seven weeks to work on one.
Won’t the appeal just go away when Trump pardons Nauta?
I don’t see that there’s much value in such debate, since (if my understanding is correct; I’m not a lawyer) her decision is limited to that district rather than having national reach.
And as usual, his lawyers will squawk out of all sides of all their orifices in support of the decision that benefits him.
I’ve been a reader of Emptywheel for years and have never commented, but today’s decision by the Office of the Special Counsel moves me to do so.
As I see it, trump was re-elected for two reasons. First, he received a plurality of votes from people who were grossly ignorant and uninformed, or know exactly what he represents and are okay with that. Second is the failure of our legal system to respond to this kind of threat to our Democracy, culminating in today’s dismissal of the cases against him.
With no legal training, I don’t claim to know what it would take to fix our legal system, but now I wonder if we will ever get a chance to do so.
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Will the evidentiary filing in the DC case now be completely unredacted? Or will the report bring all that out anyway? Any chance Garland will monkeywrench the report?
I would be shocked if Garland monkey wrenched. I suspect he’s rather happy to get it out.
What is in the report is based on 1) whether DOJ can unseal GJ information 2) classification. Since Trump has no co-defendants in DC, there’s no concern for their due process (there is in FL, but you need to sustain that to even get to do a report on FL).
The biggest question is time. I’m sure Jack Smith wants to get this out in December. So he can’t dawdle a lot in writing a 1000 page report — which I’m sure he could fill.
Since dismissal without prejudice doesn’t toll the statute of limitations, when will the indictments lapse due to that? Thanks much for your great coverage of this.
Marcy’s post indicated it was January 6, 2026. That corresponds with the Jan. 6, 2021 riot and the standard five-year SOL for most federal crimes.
Never mind, Dr. Wheeler, since overt acts extend the sol and my memory is that overt acts charged ranged into later years, particularly in the classified docs case, let me re-read the indictments and try to guesstimate it. With your intricate knowledge of these cases, thought you might have an idea already. But I guess, since I see no reason a new AG couldn’t move to convert the dismissals to w/prejudice, the real goal is to publish a report with evidence, and ever prosecuting these may be impossible.
What’s to prevent Smith, Harris, Schiff and the rest from declaring a run for the Presidency?
Try a making powder/vinegar enema. That should take care of it.
Note: you will need to have 911 on standby.
“Baking powder,” that is.
I think you really mean “baking soda” which is sodium bicarbonate, a base; when combined with an acid like vinegar (acetic acid), the reaction releases carbon dioxide.
“Baking powder” is a combination of baking soda and cream of tartar, the latter of which is tartaric acid.
Remember those little plastic rockets you used to shoot in grade school? They were powered by baking soda and vinegar, which generated enough compressed CO2 to shoot them up 30′.
For the same reason you never want to ingest an undissolved Alka-Seltzer, let’s not suggest ingesting it in any form in any orifice.
Will this impose an obligation to preserve files, e.g. evidence files, on the next DOJ? If so, on whom and how strong? Is there an entity within the DOJ which holds the SC’s duties and obligations during the interim period? Is it merely professional ethics or is there an obligation the the court(s) which dismissed without prejudice?
“That means if Congress were to decide to impeach Trump on these issues, he could again be charged (through January 6, 2026).”
Dismissal without prejudice is a legal term of art. It has nothing to do with impeachment. It means that the charges have not been determined on their merits and may be refiled. Because Trump can’t be personally sued or prosecuted while in office, the statute of limitations for filing an action against him is likely tolled during that period.
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“…the statute of limitations for filing an action against him is likely tolled during that period.”
You’re a lawyer, you should be able to do better than tell us “likely.” Where in the Constitution or U.S. Code does it say the SOL is tolled.
I think you’ll find that without a statutory basis, tolling a SOL doesn’t happen. If the basis for a claimed tolling is not abundantly clear, you can also expect Trump to litigate it for years.
How does evidence get preserved in light of what’s going to be a hostile Justice Department?
Put it in a report and publish it?
What about the supporting documentation behind the report?
Well, if there are no co-defendants and privilege has been cleared (which didn’t happen with Mueller but which, bc of shit Garland did for which he got no credit, did happen here), then you can ask the judge to release it. There’s a non-zero chance when Chutkan said, Oh yes, dismiss w/o prejudice, she knew stuff we don’t and even Trump may not.
After what Barr did to the Mueller report, there are a lot of people “who won’t believe it until they see it” re the Smith report. It’s painful to remember how Barr acted. Gosh, I’d love to feel the hopefulness I felt back then. Before it got stomped on.
Fair!! But they should also hold Merrick Garland to Merrick Garland’s past practice, which was to release reports immediately, w/o redaction.
Can anyone expand on what potential liabilities Smith may have to navigate around if/when he issues a report, the content of which may expose him to DOJ prosecution under an AG whose calling card reads: “I prosecute prosecutors”
Prosecutors have broad immunity. Trump’s repeated rhetoric aside, there’s no obvious basis on which to prosecute or sue him. But that won’t stop Trump from trying. He doesn’t use the court system to win in the traditional sense, he abuses it to punish.
An irony here is that the DoJ should pay for Smith’s defense, it Trump legally attacks him for something he did as its Special Prosecutor. Same with his staff.
From the NBC News report: https://www.nbcnews.com/politics/justice-department/jack-smith-files-drop-jan-6-charges-donald-trump-rcna181667
Trump v. US has the desired effect. Roberts and his MAGA crew say that immunity in in the Constitution. The rule of law, the principle that no one is above the law? That’s just an aspiration.