Judge Drops Election Indictment Against Trump After Prosecutors Seek Dismissal
Special counsel Jack Smith filed a motion Monday to dismiss the election subversion case against President-elect Donald Trump, citing the longstanding policy of the Department of Justice (DOJ) against prosecuting sitting presidents.
U.S. District Court Judge Tanya Chutkan granted the motion and dismissed the case without prejudice, which means it can be refiled. Chutkan noted in her opinion that “the immunity afforded to a sitting President is temporary, expiring when they leave office.”
Trump was first indicted last year while he wasn’t in office. After the U.S. Supreme Court ruled that former presidents are entitled to at least presumptive immunity for official acts, Smith brought a new indictment against Trump in August that was modified to conform with the high court’s opinion.
But once Trump won the 2024 race, experts said it was only a matter of time before prosecutors moved to dismiss the case.
“The Department and the country have never faced the circumstance here,” Monday’s filing says, “where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President.”
Prosecutors consulted with the DOJ’s legal counsel and determined that the DOJ’s policy against prosecuting sitting presidents applies to this case, the motion said.
Previous update, Nov. 16
In 2023, after announcing his third candidacy for president, Donald Trump faced four indictments in state and federal courts for a range of alleged misdeeds.
Prosecuting a former president was already a daunting task. But it was further complicated by an election and a landmark ruling from the nation’s highest court granting Trump presumptive immunity from criminal prosecution for official acts.
Now that Trump has won the 2024 race, legal experts say it’s highly unlikely that he’ll stand trial in two of the active cases against him when he takes office in January.
Of the four cases against him, one federal case was dismissed and Trump is challenging his New York fraud conviction based on the immunity ruling. If the challenge fails and he faces sentencing, it will likely be suspended until he leaves office. Trump getting prison time, experts said, is an implausible outcome.
“The writing’s on the wall,” Neama Rahmani, a former federal prosecutor and attorney, said of the federal cases. “It’s done.”
The federal cases likely won’t continue
After first charging Trump last year with allegedly trying to subvert the results of the 2020 election, the Department of Justice (DOJ) brought a new indictment against him in August to conform with the U.S. Supreme Court’s July immunity ruling, which required special counsel Jack Smith to revise the initial complaint.
The new complaint maintained the core allegations against Trump — the fake elector scheme, propagation of lies about voter fraud, and the attempt to pressure then-Vice President Mike Pence to block certification, but more incisively detailed how Trump was allegedly acting as a presidential candidate and not the president.
All the while, the 2024 campaign was in full swing. “Smith waited too long to charge the case,” Rahmani told Democracy Docket. “He had all the evidence. I think he failed to appreciate the possibility that Trump would win in 2024.”
Another legal expert said he too wished the case had been filed earlier, but noted that the case was too complex to pursue without being absolutely ready. “I think Jack Smith is a careful, thoughtful lawyer, and he was not going to go forward with this unless he had all those ducks in a row,” Robert McWhirter, a lawyer and constitutional law expert, told Democracy Docket.
Since Trump won, news outlets reported that Smith plans to resign before January, and began determining how to wind down the two federal cases against him. In the election subversion case, Rahmani said he expects that either Smith will seek a dismissal, or the defense will file a motion to dismiss.
In both scenarios, the case won’t continue while Trump is in office. The Department of Justice has a longstanding policy against prosecuting sitting presidents, since such a prosecution could impede the president’s ability to govern. In a blog post, Syracuse University law professor Gregory Germain wrote that this ruling applies to state cases. “Under the Justice Department’s opinion,” he wrote, “it seems clear that the state criminal prosecutions must be stayed while President Trump is in office.”
In addition to the election subversion case, Trump was charged with allegedly mishandling troves of classified documents. But a federal judge in July dismissed the case. Smith appealed the ruling to the 11th U.S. Circuit Court of Appeals. On Wednesday, Smith asked the court to pause the appeal until Dec. 2.
It’s unclear how Smith will proceed until then. The federal statute of limitations for a non-capital offense is within five years of when the offense was committed, according to the DOJ, and applies to the charges against Trump. That could prevent federal prosecutors from being able to try the case once Trump leaves office.
Plus, McWhirter noted, authorities may not want to go through the trouble of prosecuting Trump again, especially given his advanced age (he’ll be 82 in 2029). “It could be that people would be willing to turn the page,” he said.
Georgia case can still proceed — against Trump’s co-defendants
In Georgia, the indictment against Trump and his co-defendants was paused indefinitely in June by a state appeals court. The decision stemmed from a related legal matter concerning Fulton County District Attorney Fani Willis. Trump co-defendant Michael Roman sought to get Willis disqualified on the grounds that she had an improper relationship with special prosecutor Nathan Wade.
In March, Fulton County Superior Judge Scott McAfee ruled that either Willis or Wade must step down but did not dismiss the case. Wade resigned. But Trump and his co-defendants appealed the decision to the Georgia Court of Appeals.
McWhirter says Willis will likely move forward with the case against Trump’s co-defendants. “Donald Trump will be basically kind of absent,” he said, “but talked about all the time during their trials and their proceedings.”
Willis could also either drop the charges against Trump or wait until he leaves office to pursue the case against him, Georgia State University law professor Anthony Michael Kreis told local news outlet The Georgia Recorder.
“While Donald Trump can’t be tried while he’s sitting in the White House, there’s nothing preventing Fani Willis from pursuing the charges against everyone else,” Kreis said. Under Georgia law, the statute of limitations for starting a criminal felony case is four years.
In the New York case, Trump was convicted in May of 34 counts of falsifying business records. After the immunity ruling, New York Judge Juan Merchan approved a request from Trump’s legal team to postpone a sentencing hearing set for July so Trump’s team could submit a memorandum supporting their request that the New York conviction be overturned.
On Tuesday, a judge postponed his decision on the conviction matter, and Trump was set to be sentenced on Nov. 26. Merchan could toss the case or hand down a suspended sentence for Trump to complete after his term.
“Even before he was reelected, [I thought] there’s no way Judge Merchan is going to sentence him to a period of incarceration,” Rahmani said, adding that imprisoning a former president, logistically, would be incredibly difficult in part because of the secret service protection. “It just wasn’t going to happen,” he said. “Now that he’s president-elect, it’s even less likely to happen.”
Since Trump was charged criminally, his lawyers managed to secure a number of delays in his cases, pushing trial dates further and further away. Experts say this is a key reason why Trump was essentially able to stall until the election.