Special Counsel Jack Smith dropped the federal government’s two criminal cases against President-elect Donald Trump on Monday due to his impending inauguration—but there’s still a chance the federal government could try to revive the cases in the future after Trump leaves office, though it would have to overcome some legal hurdles.
President-elect Donald Trump looks on during the UFC 309 event at Madison Square Garden on November ... [+]
Smith asked to dismiss the federal government’s charges in Trump’s two cases—for trying to overturn the 2020 election and allegedly withholding White House documents—arguing that while he still stands by the government’s allegations against Trump, the cases have to end due to the Justice Department’s policy against prosecuting sitting presidents.
U.S. District Judge Tanya Chutkan has already granted Smith’s request in the election case, while the 11th Circuit Court of Appeals hasn’t ruled yet in the documents case, which Smith was trying to revive after Trump-appointed District Judge Aileen Cannon previously dismissed the charges.
Smith asked for both cases to be dismissed “without prejudice,” which means the charges could theoretically be filed again in the future, after Trump leaves office—versus if they were dismissed “with prejudice,” meaning they could not be brought again.
Smith’s request to the court to dismiss the election case cited a memo the DOJ’s Office of Legal Counsel issued in 2000, which found while sitting presidents cannot be prosecuted while in office, that does not “preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”
But it’s unclear if a second prosecution would work out: Trump’s lawyers would likely argue the statute of limitations had run out on the charges by the time he leaves office, as his alleged federal offenses are subject to a five-year statute of limitations following the end of the conduct that Trump was charged with—which would expire in early 2026 for the election case and 2027 for the documents case.
Prosecutors could argue the statute of limitations was paused for the duration of Trump’s presidency, though it remains to be seen if the courts would agree, and the 2000 memo also noted Congress could pass a rule saying the statute of limitations didn’t apply when Trump was in the White House—but given the current political divisions in Congress, that seems unlikely to pass.
Smith’s motions to dismiss Trump’s cases “could be an effort to keep the cases alive in the long term,” former U.S. attorney Barbara McQuade wrote in an op-ed for MSNBC Tuesday, noting that by insisting the cases be dismissed without prejudice, the special counsel “blocks Trump’s attorney general from dismissing the cases for all time.” “It may be that a future attorney general … will lack the appetite to resuscitate the cases against Trump in 2029,” McQuade added. “But Smith has done all he can to preserve that possibility.”
It will be years before it’ll be clear whether a second round of Trump indictments will actually happen. The charges would probably be contingent on a Democratic president replacing Trump when he leaves office, as a GOP successor would be unlikely to try and punish Trump. Even if Democrats took back the White House in 2032 or 2036, it would then be too late under the statute of limitations to bring charges, even excluding the time when Trump was in office. It’s also still too early to say whether indicting Trump again would be a priority for the federal government by the time he leaves office, given Trump’s advanced age and the fact he will not be eligible to run for president for a third term. He will be 82 years old when he leaves office in January 2029.
Another potential step Trump could try to take to shield himself from future legal liability would be to pardon himself while he’s in office, though it’s a legal grey area whether he would be allowed to do so. The Justice Department said in a 1974 memo during Richard Nixon’s presidency presidents are not allowed to pardon themselves, citing the “fundamental rule that no one may be a judge in his own case.” That memo isn’t legally binding, however, and since Nixon resigned and was pardoned by Gerald Ford rather than trying to pardon himself, the issue hasn’t been tested in practice. If Trump tried to pardon himself, the issue would likely become tied up in court and ultimately be left to the Supreme Court to decide.
While his federal cases have been dropped, Trump’s two other criminal cases in state court are still pending—at least for now. Trump has already been found guilty on 34 felony counts in New York for falsifying business records, but his sentencing has been delayed while Judge Juan Merchan determines whether to grant Trump’s request to throw the verdict out altogether in light of his election. Even if Merchan denies Trump’s request and keeps the case alive, it’s unlikely Trump will be sentenced before Inauguration Day, and prosecutors said they believe it would be appropriate for Trump’s sentencing to wait until after he leaves office. Trump has also been charged in Georgia state court for trying to overturn the 2020 election. That case has not yet gone to trial and remains pending, though Trump’s lawyers are expected to try and have it thrown out based on him being elected president. If the court keeps the case alive, the proceedings are expected to be paused until Trump leaves office.
Trump was indicted in the two federal cases last year, becoming the first sitting or former president to ever be federally charged. While the cases were supposed to go to trial earlier this year—with the election case slated for trial in March and the documents case in May—Trump managed to successfully delay the cases past Election Day, ultimately killing them. The election case was paused for months while the Supreme Court deliberated whether Trump should be immune from prosecution, ultimately ruling in July to shield him from some criminal charges—a major hurdle that would likely pose issues even if Trump is charged again after leaving office. While Smith argued the charges could go forward even in light of the Supreme Court’s decision, it was already too late for the case to go to trial by Election Day. Cannon dismissed the documents case in July after already indefinitely postponing the trial date, as the Trump-appointed judge slow-walked rulings leading up to the trial. Smith then appealed the case to the 11th Circuit, but there was not enough time for it to issue any ruling on whether the charges should be revived before Trump’s election.
While Smith dropped the government’s charges against Trump in the documents case, he did not end separate cases against Trump aides Walter Nauta and Carlos deOliveira, who were charged with helping Trump conceal classified documents. Those cases are still continuing on at least for now, with Smith arguing in a new filing Tuesday the charges should be revived after Cannon dismissed them. It’s unlikely the cases will continue on for much longer, though, as Trump’s appointees at the Justice Department are likely to drop the charges after he takes office. Trump allies who were charged alongside the ex-president in the Georgia 2020 election case—including Rudy Giuliani and former White House Chief of Staff Mark Meadows—will also still have to face prosecution and likely go to trial while Trump’s in office, however, even if his own trial gets delayed or dropped entirely. He will not be able to have his allies’ charges dropped or pardon them, given the case is in state court and not federal court.