With D.C. case dismissed, Trump is no longer under federal indictment
Special counsel Jack Smith makes a statement from his office in Washington on June 9, 2023. (Tom Brenner for The Washington Post)
A judge dismissed the federal election-obstruction charges against President-elect Donald Trump on Monday, ending a historic investigation that never went to trial but led to enduring changes in the legal landscape over a president’s immunity from prosecution.
Special counsel Jack Smith won approval from a judge to drop the case, defending its merits in his motion to dismiss but citing Justice Department policy that prohibits prosecuting a sitting president. Smith separately asked the U.S. Court of Appeals for the 11th Circuit to remove Trump as a co-defendant from the special counsel’s appeal of a ruling in a different case that involved Trump’s alleged mishandling of classified documents.
Together, the two motions essentially mark the end of the Justice Department’s first federal prosecutions of a former president—and the triumph of a remarkable strategy by Trump’s lawyers. All along, Trump seemed to understand that his best hope for avoiding trials was to win the presidency again, a reality that Vice President-elect JD Vance underscored Monday on social media.
“If Donald J. Trump had lost an election, he may very well have spent the rest of his life in prison,” Vance wrote on X, before repeating Trump’s frequent complaint that he had been unfairly targeted. “These prosecutions were always political. Now it’s time to ensure what happened to President Trump never happens in this country again.”
Trump also responded on social media, saying the underlying cases were “empty and lawless” and should “never have been brought.”
Smith first asked U.S. District Judge Tanya S. Chutkan on Monday to dismiss the charges against Trump for allegedly trying to block Joe Biden’s 2020 victory, saying that he “stands fully behind” the allegations but that Justice Department guidelines made clear the case could not go forward. Chutkan quickly agreed to dismiss the case without prejudice. That leaves open the possibility that prosecutors could again bring charges once Trump leaves office, though steep hurdles would remain.
Soon after, Smith lodged his request to drop Trump from his appeal of this summer’s dismissal of the classified documents indictment, in which Trump had been accused of hoarding secret material and obstructing government efforts to retrieve it.
U.S. District Judge Aileen M. Cannon, a Trump appointee, had tossed the case, breaking with legal precedent to agree with Trump’s lawyers that Smith was unlawfully appointed. Smith asked the 11th Circuit to allow the appeal of that ruling to go forward by keeping in the case Trump’s co-defendants, Carlos De Oliveira and Waltine “Walt” Nauta—who were accused along with Trump of trying to obstruct government efforts to retrieve the classified material.
Prosecutors are seeking to overturn Cannon’s ruling not only to resurrect the classified-documents case, but also to protect Justice Department appointments during the Trump administration and beyond.
Attorney General Merrick Garland tapped Smith—a former public corruption prosecutor who was investigating war crimes in The Hague—to take over the Trump investigations in November 2022, days after both Trump and Biden indicated that they would again run for president.
Garland said a special counsel, who has more independence than a traditional Justice Department prosecutor does, was needed to ensure public trust in the probes.
Trump’s defense team repeatedly tried to frame the cases against him as politically motivated attempts to sink his election chances—despite no evidence that Biden was involved in the investigations. Since being elected, Trump has chosen several of his personal criminal defense lawyers in the cases to serve in top Justice Department positions in his administration. The Washington Post reported Friday that Trump plans to fire the entire team that works with Smith, including career attorneys typically protected from political retribution, according to two individuals close to Trump’s transition.
The two federal indictments of Trump came within months of him being indicted in New York on state charges of falsifying business records to cover up a hush money payment in 2016, and in Georgia on state charges of trying to block the election results in that state.
Only the New York case has gone to trial. Trump was convicted on 34 felony counts, but his sentencing has been twice delayed since this summer. The trial judge is expected to decide next month whether to push it off until after Trump’s second term.
Trump denied wrongdoing in every case and is appealing the New York conviction. The prosecutions became a central focus of his presidential campaign, with Trump and his allies rallying supporters who believed he was being unfairly targeted.
Once Trump won the election, Smith had few options to keep the two federal cases alive. He plans to resign before Trump is president, preventing Trump from delivering on his promise to fire him, people familiar with his plans have said.
Before that, it’s possible that Smith could deliver to Garland a special counsel report outlining the findings of the investigations. It would be up to Garland, who has in general said such reports should be made public, to decide how much of Smith’s material to release.
In the D.C. indictment, Trump faced four counts related to conspiring to obstruct the 2020 election results. He was accused of using false claims of voter fraud to pressure federal, state and local officials to change election results and deny the American people their right to have their votes respected.
Smith’s filing acknowledged that the Justice Department has long believed a sitting president cannot stand trial, and says that policy must outweigh the “merits of the prosecution.”
“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,” the filing states.
Smith’s motion in D.C. relies heavily on his reading of Justice Department memos from the Office of Legal Counsel on a president’s criminal liability. One memo suggests that a future court could decide to pause the five-year statute of limitations on charging Trump with crimes for his post-2020 election conduct while he is back in office. Any decision would probably be reviewed by a higher court.
But the Constitution has few limitations on presidential pardon powers, and legal experts said it’s possible that once Trump is in office, he could try to do something that has never been tested before: preemptively pardon himself to foreclose the possibility of legal jeopardy in the future or get the Justice Department to dismiss the case.
In agreeing to dismiss the case, Chutkan made clear that she was leaving an opening for a future court to revive it. “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,” she wrote.
Prosecutors had been building the election interference case and interviewing witnesses in front of D.C. grand juries long before Smith took over.
They asked hours of detailed questions about meetings Trump led in December 2020 and January 2021 to discuss his unfounded claims of widespread election fraud; his pressure campaign on Vice President Mike Pence to overturn the election results; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, The Post has reported.
Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani.
Once Smith secured a grand jury indictment, Trump’s legal team filed a host of challenges, freezing the proceedings for months and eventually winning a broad ruling from the Supreme Court that presidents are generally immune from prosecution for official acts.
The Supreme Court decision pushed Smith to file a superseding indictment against Trump, keeping the same four charges but paring down the allegations. Until Trump won the election, Chutkan had been preparing to consider what elements in the superseding indictment could be prosecuted under the expanded definition of presidential immunity.
The classified document investigation began in the spring of 2022, after months of disagreement between Trump and the National Archives and Records Administration over boxes of documents that followed Trump from the White House to Mar-a-Lago, his Florida home and private club. Court papers say more than 300 documents marked classified were eventually recovered from Trump’s home, including some in response to a subpoena and more than 100 during a court-authorized FBI search of the property.
The documents were stored haphazardly, according to the indictment. Some contained extremely sensitive government secrets, including material on the nuclear capabilities of foreign nations, The Post has reported.
Investigators obtained surveillance that allegedly showed Trump’s co-defendants trying to move the boxes and then consider deleting the security footage to obstruct the government’s attempts to retrieve the materials.
After Trump was indicted, the case was assigned to Cannon, a relatively inexperienced trial judge whom Trump nominated to the bench toward the end of his first term. She drew criticism for entertaining with hearings every seemingly long-shot motion that Trump’s team filed to dismiss the case - including Trump’s argument that Smith was unlawfully appointed.
A group of conservative attorneys agreed with Trump’s position, but others said dismissing the case would overturn decades of precedent on how the Justice Department appoints independent or special prosecutors.
After Cannon issued her decision, Justice Department officials feared it could jeopardize not just future special counsels, but also any federal prosecutor or senior official serving in a temporary position, The Post reported this summer.
Keeping the appeal alive with Trump’s co-defendants allows the Justice Department to possibly win a ruling that overturns the precedent set by Cannon. But if there is no movement in the appeal before Trump is sworn in on Jan. 20, it will be up to Trump’s Justice Department to decide whether to drop the appeal or proceed.
Mark Berman and Ann Marimow contributed to this report.
