Special counsel Jack Smith filed a motion with the trial court in the District of Columbia to dismiss the Jan. 6 election interference case against President-elect Donald Trump on Monday, kicking up a flurry of questions — namely, why would the special counsel pull the plug? Smith later filed a motion with the 11th Circuit Court of Appeals to dismiss the appeal of the government documents case against Trump. While Trump has vowed to fire Smith, why would the special counsel do something to make it easy for Trump, by dismissing the cases himself before Trump is sworn in to office in January? Is this simply an example of what historian Timothy Snyder calls “obeying” an authoritarian in advance?
An interesting tell in each motion is Smith’s request to dismiss the cases “without prejudice.” That means that the cases can be filed again.
Not at all. In fact, this move could be an effort to keep the cases alive in the long term. An interesting tell in each motion is Smith’s request to dismiss the cases “without prejudice.” That means that the cases can be filed again. By dismissing the cases now on his own terms, Smith blocks Trump’s attorney general from dismissing the cases for all time.
In addition, by filing his motions pre-emptively, Smith was able to explain his reasons for dismissing the case, rather than allowing Trump’s future AG to mischaracterize them. According to Smith, he was dismissing the case not because of the merits or strength of the cases, but because he had to. As Smith explains, the DOJ’s Office of Legal Counsel, whose opinions are “binding” on the special counsel, has concluded that a sitting president may not be indicted or criminally prosecuted under the Constitution. OLC reasoned that criminal charges would make it impossible for a president to carry out his constitutional duties in light of the distraction of preparing a criminal defense, the public stigma that would hamper his leadership role and the obstacles prison would impose on his ability to perform his duties.
But Smith was careful to note that this relief from criminal prosecution is “temporary,” and ends when the president leaves office. Smith cites OLC as concluding that this form of immunity for a sitting president “would generally result in the delay, but not the forbearance, of any criminal trial” That is, Trump gets a reprieve, but only during his term in office.
Of course, as in most criminal cases, the statute of limitations here is five years from the date of the last act alleged in the indictments. In the Jan. 6 case, the last alleged conduct occurred in January 2021, so the deadline for filing new charges would typically be January 2026. In the documents case, in which the last act occurred in August 2022, the statute will expire in August 2027. Both dates will arrive well before Trump’s term ends. But Smith’s brief contains another tell when he writes that OLC has “noted the possibility that a court might equitably toll the statute of limitations to permit proceeding against the President once out of office.” That is, a court could call a timeout, pausing it on Trump’s inauguration day on Jan. 21, 2025, and then restarting the clock when Trump leaves office in 2029. That would give prosecutors plenty of time to refile charges. Certainly, the tolling issue would be litigated, but by dismissing the case now, Smith preserves this issue for future prosecutors to argue.
Finally, Smith ends by stating that the government’s position on the merits of the defendant’s prosecution has not changed. That is, he stands by the charges that Trump attempted to defraud the United States by interfering with the lawful transfer or presidential power, obstruct the joint session of Congress to certify the election and violate the voting rights of millions of American citizens by falsely claiming fraud in the 2020 election. Smith further stands by his charges that Trump unlawfully retained sensitive government documents and obstructed the government’s investigation when it sought to retrieve them. In fact, the appeal against Trump’s two co-defendants in the documents case will continue unless and until a new AG dismisses it. The case was dismissed not because of any decision on the merits of the case, but because District Judge Aileen Cannon found that the appointment of the special counsel was illegal. As OLC has written, the bar on prosecuting a president is not forever — a president “is ultimately accountable for his misconduct that occurs before, during, and after his service to the country.” As Smith writes, “the president lacks the prerogatives of a king and his protection from prosecution.” It may be that a future attorney general, whether serving in a Democratic or Republican administration, will lack the appetite to resuscitate the cases against Trump in 2029. But Smith has done all he can to preserve that possibility.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
