Special counsel Jack Smith moved to dismiss his appeal seeking to revive the classified documents case against Donald Trump, effectively ending the federal prosecutions against the president-elect.
Smith’s filing to the federal appeals court followed his motion earlier on Monday to dismiss the federal election interference case in Washington, D.C., due to Justice Department policy against charging and prosecuting sitting presidents. That same reasoning led Smith to tell the 11th U.S. Circuit Court of Appeals he is moving to dismiss the appeal as to Trump but not as to his two co-defendants in the case.
“The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them,” Smith wrote.
U.S. District Judge Aileen Cannon previously dismissed the case on the grounds that Smith was unlawfully appointed.
It’s understandable that Smith wouldn’t drop the appeal against the co-defendants if the reason he dropped it against Trump is DOJ policy that doesn’t apply to people who aren’t or won’t be president. But it’s difficult to see the case proceeding much further against those other two defendants, Walt Nauta and Carlos De Oliveira, who have pleaded not guilty. DOJ lawyers in the Trump administration could move to withdraw the appeal against them and Trump could pardon them.
The case proceeding while Trump is in office would mean the continued litigation of a case in which the sitting president (who also pleaded not guilty) is at the center of an allegedly criminal scheme to illegally retain national defense information and obstruct justice. That dynamic could unfold in the Georgia state election interference case, one of Trump’s two state cases whose fates are unclear because presidents can’t make them go away like federal cases. Trump is the only defendant in the New York case where he was found guilty at trial and it’s unclear whether he will be sentenced before he takes office. But he has many co-defendants in the Georgia case, which is currently on a pretrial appeal but could further proceed against them while Trump is in office. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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