An Update on Jack Smith's Cases

As predicted, Judge Tanya Chutkan has granted Jack Smith's motion to dismiss the election subversion case without prejudice. But Jack Smith aims to keep the documents case against Nauta and DeOliveira

Within a few hours of Jack Smith filing his motion to dismiss the January 6th case without prejudice, Judge Chutkan has granted it (see previous post.)

She writes:

The Government has moved to dismiss the Superseding Indictment without prejudice. Defendant does not oppose the Motion, and the court will grant it.

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 [government moves to dismiss an indictment over the defendant's objection." Here, Defendant consents to the dismissal, and there is no indication that the dismissal is "part of a scheme of 'prosecutorial harassment'".

Rather, the Government explains that it seeks dismissal pursuant to Department of Justice policy and precedent. The court will therefore grant the Government leave to dismiss this case.

She then explains why she agrees that the case should be dismissed without prejudice:

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. 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." 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.

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 (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)).

Accordingly, the court will GRANT the Government's Motion to Dismiss, and DISMISS the Superseding Indictment without prejudice. A separate Order will accompany this Opinion.

Again, the chances of this case being brought again in four years are very slim, but the door is not completely closed. If a new Attorney General decides to bring the case again in 2029, that Attorney General would have to ask the court to toll the statute of limitations, which would ultimately be decided by the Supreme Court. I doubt they’d let it happen. Either way, I’m a little surprised Trump didn’t fight to have this dismissed WITH prejudice, but maybe he has plans to make that happen after he takes office.

In the Espionage and Obstruction of Justice classified documents case Jack Smith brought against Trump, Nauta, and DeOliveira, Jack Smith has asked the 11th Circuit Court of Appeals to dismiss his appeal AS TO DONALD TRUMP only, and not his co-defendants.

As you know by now, Judge Cannon dismissed the entire case on the basis that Jack Smith was illegally appointed and funded - an idea she got from Clarence Thomas in his immunity concurrence questioning the appointment of Special Counsel for seemingly no reason whatsoever.

Smith writes to the 11th Circuit:

As a result of the election held on November 5, 2024, defendant Donald J. Trump will be inaugurated as President on January 20, 2025. For the reasons set forth in United States v. Trump, (filed Nov. 25, 2024) (moving to dismiss criminal prosecution as to defendant Trump in the United States District Court for the District of Columbia), the United States of America moves, pursuant to Federal Rule of Appellate Procedure 42 and Eleventh Circuit Rule 42-1, to dismiss the appeal in this case as to defendant Trump. Dismissing the appeal as to defendant Trump will leave in place the district court’s order dismissing the indictment without prejudice as to him. The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them.

The Government has consulted with counsel for defendant Trump, who do not object to this motion.

I actually thought Jack Smith would dismiss the case against all three defendants, but he wants to keep the case against Nauta and DeOliveira going. We’ll see what the 11th Circuit does, but if they grant this motion as-is, Jack Smith will presumably continue to try and get the case re-instated against the co-defendants. If he can somehow get Cannon’s dismissal overturned before January 20th, I don’t see how he continues with prosecution against the co-defendants after Trump takes office as I imagine Trump will simply pardon Nauta and DeOliveira.

Perhaps if the case gets reinstated by the 11th Circuit, Smith could then ask the judge to dismiss the rest of the case without prejudice and issue a report. Otherwise, he’ll wait to be fired by Trump in the Florida case. But since Jack Smith has said he intends to resign before Trump takes office, I’m not sure how the rest of this case plays out. Perhaps he’s just looking to ensure Cannon’s ridiculous dismissal is overturned?

You can read his motion to the 11th Circuit here.