Special counsel Jack Smith on Friday asked a federal court in Washington, D.C., to vacate the remaining deadlines in the 2020 election subversion case against President-elect Donald Trump, signaling a likely end to one of two federal criminal cases against him.
Smith signaled his plans to stop pursuing two criminal indictments against Trump earlier this week after a spokesperson for the special counsel’s office circulated a memorandum on the Justice Department’s long-standing policy that the agency is precluded from prosecuting an incoming or sitting president.
“The Government respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy,” Smith wrote, noting Trump will be inaugurated on Jan. 20, 2025.
The special counsel’s office said it would provide presiding U.S. District Judge Tanya Chutkan a status report or “otherwise inform the Court” of its ultimate determination for the future of the case by Dec. 2, but all signs point to the case’s dismissal due to the longstanding precedent that would preclude any such indictment against a sitting president.
Chutkan granted Smith’s motion almost immediately after it was filed on Friday, saying the government “shall file a status report indicating its proposed course for this case going forward.”
DOJ policy dating back at least two decades clearly states: “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions,” according to a memorandum from October 2000.
Smith, appointed by Attorney General Merrick Garland, filed criminal charges against Trump last year over Trump’s alleged efforts to overturn his 2020 election loss to Joe Biden. Smith charged Trump with four felonies, including obstruction of official proceedings and conspiracy to defraud the United States.
Trump pleaded not guilty and maintained the case was a “witch hunt” by the Biden administration meant to hinder his reelection chances.
The case has been in legal limbo since the Supreme Court ruled this summer that Trump was partially immune from criminal prosecution over official acts undertaken while in office, with questions surrounding his rally outside the White House on Jan. 6, 2021, and the riot that ensued at the U.S. Capitol before Trump’s speech was concluded.
During the rally, Trump urged his supporters to march “peacefully” to the Capitol to make their frustrations heard about Trump’s 2020 election loss to Biden.
Smith has since refiled his case, arguing Trump’s alleged attempts to overturn the election were not related to his official duties.
In the summer of 2023, Smith also accused Trump of taking with him highly sensitive documents when he left the White House in January 2021, alleging Trump stashed the classified papers in his Mar-a-Lago home and showed them to government officials not authorized to see them. Smith charged Trump with 40 felony counts, 32 of which included “willful retention” of government documents under the Espionage Act.
The classified documents case against Trump had already been dismissed by a federal district court judge, though the special counsel’s office attempted to revive the case at the U.S. Court of Appeals for the 11th Circuit.
Both cases are unlikely to continue as Trump has vowed to fire Smith in “two seconds” if the special counsel remains at the DOJ when Trump assumes office in January. Trump has called Smith “deranged” and a “Trump-hating THUG.”
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Meanwhile, Republicans in the House are calling on Smith to preserve all of his records from his time as special prosecutor over the cases.
“The Office of Special Counsel is not immune from transparency or above accountability for its actions,” Reps. Jim Jordan (R-OH) and Barry Loudermilk (R-GA) told Smith in a letter calling for the communications between the DOJ and the White House regarding the Trump cases and information about the FBI’s involvement in them.