Jack Smith Seeks to Preserve the Case Against Trump

Today, Special Counsel Jack Smith has asked Judge Chutkan to dismiss the January 6th election subversion case without prejudice.

Good morning!

Today’s motion from Jack Smith is asking Judge Chutkan to do something that’s never been done before: dismiss a criminal case against a president-elect - without prejudice - for crimes he allegedly committed as a private citizen, specifically to allow the same charges to be brought again once the “President’s term is over or he is otherwise removed from office by resignation or impeachment.”

From what I can deduce from this motion, Jack Smith went to the DoJ Office of Legal Counsel to ask how to proceed in line with Justice Department policy (which is based on the Constitution.) Because Trump won the election, Jack Smith explains that there are now two competing ideas at odds:

1. The Constitution’s requirement that the president must not be unduly encumbered in fulfilling his weighty responsibilities, see Nixon v. Fitzgerald

2. The nation’s commitment to the rule of law and the longstanding principle that “[n]o man in this country is so high that he is above the law,” United States v. Lee

The Office of Legal Counsel has weighed in twice on prosecuting a sitting president. Once in 1973 concluding that “a criminal prosecution of a sitting President would violate the separation of powers and unduly interfere in a direct or formal sense with the conduct of the Presidency.”

The second OLC memo on the subject was written in 2000 and came to the same conclusion, but added “a categorical rule against indictment or criminal prosecution” of a sitting president.

But BOTH of the memos also vehemently asserted that no man is above the law, and to preserve that idea, even though a president can’t be indicted or prosecuted while he’s in office, the OLC noted that “because a sitting President’s immunity is “temporary,” extending only so far as his term in office, it “would not subvert the important interest in maintaining the ‘rule of law.’”

So on one hand, no you can’t indict or prosecute a sitting president, but on the other hand he’s not above the law because his immunity is only temporary. Basically, the one thing holding that no one is above the law is the fact that we can charge him once he’s out of office.

Something else the 2000 OLC memo considered is whether the president’s ability to do his job would be harmed “by the mere pendency of an indictment against which he would need to defend himself after leaving office.” Meaning, could you indict a sitting president, hold it in abeyance until after he’s out of office, and prosecute him then? Or would the mere thought of having to deal with a pending indictment against you violate the constitution?

After considering that possibility, the OLC decided the “Constitution would thus prohibit an indictment “even if all subsequent proceedings were postponed until after the president left office.” So no. You can’t indict a sitting president, hold it in abeyance, and then pick it up after he leaves office.

But what if you indict a private citizen who then becomes president? Neither of the OLC memos considered that possibility (because what kind of country would elect someone who has been indicted?! Surely THAT could never happen!) Well. It has.

So Jack Smith asked the OLC whether this case needs to be dismissed, or if it can simply be held in abeyance until Trump is no longer immune from prosecution (not immune like the Supreme Court immunity, but immune because he’s a sitting president.)

The OLC says that indicting a sitting president and indicting a private citizen who is then elected president is the same thing. You can’t do it. So the department’s position is that Jack Smith must dismiss the case before Trump is inaugurated. He can’t ask the court to hold the case in abeyance.

BUT! Jack Smith says that since Trump’s immunity from prosecution as a sitting president is temporary, the DoJ argues that the Constitution does NOT require a dismissal with prejudice. And he cites the 2000 OLC memo to back up his argument:

“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”

It’s kind of confusing, but the DoJ has determined that they can’t keep the indictment on ice (in abeyance) because that would violate the Constitution, but they do NOT have to dismiss this case with prejudice because the immunity Trump is afforded as sitting president from prosecution is temporary. The DoJ is arguing that this case and these same charges can be brought again after Trump leaves office, and are therefore asking Judge Chutkan to dismiss without prejudice. Jack Smith isn’t saying he will bring the case again, but he argues pretty hard for the ability to.

So what about the statute of limitations? For these crimes, the statute of limitations is 5 years. How could you bring the charges again after his term expires? Jack Smith points out that both the 1973 OLC memo and the 2000 OLC memo considered this notion. If you can’t indict a sitting president and hold the indictment in abeyance, what do you do about the statute of limitations?

OLC recognized that the interest in avoiding a statute of limitations bar by securing an indictment during the presidency “is a legitimate one,” and it noted the possibility that a court might equitably toll the statute of limitations to permit proceeding against the President once out of office.

So if Judge Chutkan dismisses the charges without prejudice, my understanding is that DoJ could bring the charges again after he’s out of office. Trump would then file a motion to dismiss on statute of limitations grounds. And then it would need to be litigated as to whether his time in office was tolled.

The dismissal of the case also allows Jack Smith to write a report, which he must do per the Special Counsel regulations. He will give that report to Merrick Garland who will then decide whether to release it. You’ll recall when Mueller issued his report to Bill Barr, Barr wrote a four page “summary” that completely mischaracterized Mueller’s findings, and let that bullshit spin for three weeks before the actual report was released. Even then, a judge found that Bill Barr inappropriately redacted much of Mueller’s report to downplay the breadth and depth of Russia’s interference in our elections. I don’t see those kinds of shenanigans happening this time around.

And please keep in mind that it would be very difficult to bring the case again in four years, but the DoJ here is leaving open the possibility with this motion should Judge Chutkan grant it.

And I think she will.

You can read the full filing here.