Special Counsel Smith Taps Out

Not with a bang, but with a motion...

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WASHINGTON – JUNE 9: Special Counsel Jack Smith makes a stateme

(Photo by Tom Brenner for The Washington Post via Getty Images)

Well, the Republic was fun while it lasted.

This afternoon Special Counsel Jack Smith moved to voluntarily dismiss both criminal cases against Donald Trump. Thanks to our feckless Supreme Court and a 50-year-old precedent meant to usher Richard Nixon out without too much fuss, Donald Trump has managed to save himself from the consequences of an attempted coup by getting himself reelected.

As in the Mueller Investigation, the Justice Department’s invented immunity for a sitting president has once again thwarted the prosecution of an unrepentant criminal.

“It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President,” Smith writes in his motion to dismiss the election interference case in DC, adding that “That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Government stands fully behind.”

Smith says that he consulted the Office of Legal Counsel and concluded that, “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.” Presumably this is to leave open the possibility of prosecuting Trump once he leaves office, if ever.

In the Eleventh Circuit, Smith also moved to dismiss the appeal of Judge Aileen Cannon’s dismissal of the stolen documents case — but only with respect to Trump himself.

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“The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them,” he writes of Trump’s hapless henchmen Walt Nauta and Carlos De Oliveira.

Dismissing with respect to the lesser goons would be problematic, allowing Cannon’s fakakta ruling that special counsels are illegal to stand. This may present a conundrum for Pam Bondi, when she takes the reins from Attorney General Merrick Garland: How can she appoint Special Counsel Matt Gaetz to investigate Jack Smith if special counsels are against the law? (That’s a joke. Logical and legal inconsistency is not going to be a bar in a second Trump administration.)

In the meantime, dismissing these cases paves the way for Smith to release his mandatory final report. Under 28 CFR § 600.8(c), “At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” AG Garland has indicated that he does intend to release this report publicly, something AG Bondi would certainly refuse to do.

That won’t stop the BlueAnon-ers from insisting that Smith should have stuck around until January and made Trump fire him. But at least it’ll make for good reading as we all wait to be shipped off to Gitmo.

US v. Trump [11th Circuit Docket via Court Listener]
US v. Trump [District Docket via Court Listener]

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Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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