President-elect Trump won his biggest legal victory so far on Monday when special counsel Jack Smith announced he was seeking the dismissal of the two federal cases Trump was facing.
The decision was taken based on the long-standing view that a sitting president cannot be criminally prosecuted while in office.
The judge in one of the cases, pertaining to Trump’s actions around the Capitol riot of Jan. 6, 2021, duly granted the dismissal. U.S. District Court Judge Tanya Chutkan noted that the dismissal “without prejudice” was “also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office.”
In plain terms, that means a prosecution could theoretically be pursued anew after Trump leaves office at the end of his second term.
This seems unlikely as a practical matter, however, given the long pause and the fact that Trump will be 82 by the time his final term concludes. If Trump is succeeded by another Republican, there would be no real chance of a new prosecution.
The situation underlines just what a big personal prize Trump won by defeating Vice President Harris in this month’s election.
In addition to becoming the first person since former President Grover Cleveland in the late 19th century to win nonconsecutive presidential terms, Trump’s victory has also all but vaporized any legal threats he faces.
The second case affected by Smith’s move on Monday centered on the discovery of sensitive documents at Mar-a-Lago. The charges included conspiracy to obstruct justice and 32 counts of willful retention of national defense information.
Some legal observers believed the prosecution in the Mar-a-Lago matter had the strongest case of any of the indictments Trump faced.
But the case was dismissed by a Trump-appointed judge in July, who held that Smith had been illegally appointed.
Smith’s team were appealing the decision. The appeal will now be abandoned.
The fates of the two other criminal cases that were filed against Trump since he left office in early 2021 are also in jeopardy.
Trump’s team will likely seek the dismissal of the New York case that resulted in his conviction on 34 counts of falsifying business records in May. The underlying issue in the matter was hush money paid to adult actress Stormy Daniels.
The prosecutor in that case, Manhattan District Attorney Alvin Bragg (D), has already conceded that sentencing would have to wait until Trump finishes his second term. Lawyers for Trump have made the argument that his performance as president would be impeded if the case remained active and that it should be dismissed.
That leaves only a state case in Georgia, pertaining to efforts by Trump and his allies to overturn the 2020 election result there. It is also mired in pretrial wrangling, as Team Trump seeks to force the removal of prosecutor and Fulton County District Attorney Fani Willis (D) from the case.
The bottom line is Trump may not face consequences anywhere — even though he will have a black mark in the history books as the first convicted felon to be elected president.
Naturally, Trump and his allies took a victory lap in the wake of Smith’s decision.
“These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought,” Trump wrote in a social media post.
Allies also chimed in, with Sen. Tom Cotton (R-Ark.) arguing that the cases brought by Smith “will be remembered as a dark chapter of weaponization.” Cotton, echoing Trump’s rhetoric about Smith, condemned the prosecutor as “fanatical” and “deranged.”
To Democrats and liberal Americans more broadly, however, it is Trump’s apparent escape from the legal consequences of his actions that is the real injustice.
Rep. Dan Goldman (D-N.Y.) said during a CNN interview that the decision “establishes that Donald Trump is above the law” and that he will likely “escape full accountability for what were crimes charged by a grand jury.”
Sen.-elect Adam Schiff (D-Calif.), one of Trump’s chief tormentors while in the House of Representatives, complained Monday that the Department of Justice (DOJ) and court system had “failed to uphold the principle that no one is above the law.”
“The public deserved better.”
Schiff implied that the DOJ under outgoing Attorney General Merrick Garland had waited too long before getting the wheels of justice moving against Trump. Garland appointed Smith in late November 2022, more than two years after President Biden had defeated Trump.
Opinions as to Trump’s criminal culpability divide along largely partisan lines, like so much else in contemporary American life. But the belief that he is guilty extends well beyond Democratic partisans or critics in the media.
A New York Times/Siena College poll back in April asked Americans whether or not they believed Trump had “committed serious federal crimes.”
Fifty-four percent of registered voters said that he had done so, while 34 percent said he had not. Eighty-eight percent of Democrats and 52 percent of independents held this view but only 19 percent of Republicans shared it.
Seventy-two percent of Republicans contended that Trump had not committed such crimes.
For now, one thing seems clear.
Trump’s election victory has also bought him freedom from any real threat of legal punishment.
The Memo is a reported column by Niall Stanage.
