Former Special Counsel Jack Smith believes there was “sufficient” evidence to convict President-elect Donald Trump in his criminal case over the 2020 election, the prosecutor wrote in his final report on the investigation, reviving the question of whether the federal government could try to re-indict Trump in the future after he leaves office—though prosecutors 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 defended his decision to indict Trump for trying to overturn the 2020 election in his final report on the investigation, which was released early Tuesday, writing he believes if it weren’t for Trump’s presidential victory requiring the case be dismissed, “the admissible evidence” against the president-elect “was sufficient to obtain and sustain a conviction at trial.”
Smith dropped both of the government’s criminal cases against Trump in November, including the election case and a case over whether Trump mishandled White House documents, and 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.
The special counsel emphasized in his final report on the election case that the decision to dismiss the case was solely based on Trump’s election, writing his office “stands fully behind” the “merits of the prosecution” and the case was not dismissed for anything related to “ the gravity of the crimes charged” or “the strength of the Government's proof.”
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.
The Justice Department made Smith’s final report on the election investigation public early Tuesday morning following a court battle over its release, as Trump and his co-defendants in the documents case sought to keep it hidden. The report lays out Smith’s case against Trump as the prosecutor defended his decision to indict the ex-president, writing Trump “resorted to a series of criminal efforts to retain power” after he lost the election and his “knowing deceit” was “pervasive” throughout his post-election efforts. Trump and his allies repeatedly “used specific and knowingly false claims of election fraud” to try to convince state lawmakers, state officials, then-Vice President Mike Pence and others to reject the results, Smith wrote, arguing prosecuting Trump was necessary and his allegedly criminal conduct went beyond “mere political exaggeration or rough-and-tumble politics.” While the document on the election investigation is one of two volumes Smith wrote as part of his final report, it’s the only one that’s expected to be released. Attorney General Merrick Garland has said he will not release the second volume, which covers the case against Trump for allegedly withholding White House documents, while Trump’s co-defendants in the case are still being prosecuted. That prosecution is unlikely to end before Trump takes office—at which point it will be up to Pam Bondi, Trump’s attorney general pick, to decide whether the report should be made public, which she is unlikely to grant.
Smith’s moves 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 in November, 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.
Trump was sentenced in his criminal case in New York state court Friday, receiving an “unconditional discharge” that means he’s been formally convicted of the 34 felony counts he was found guilty of, but will not face any penalties like prison time, fines or probation. He’s also been charged in Georgia for his efforts to overturn the 2020 election there, but that case is now in limbo after a state appeals court ruled Fulton County District Attorney Fani Willis, who oversaw the prosecution, should be disqualified. Willis is appealing that ruling, but if the Georgia Supreme Court upholds it, it means the case would have to be transferred to a different Georgia prosecutor’s office—and there’s a chance it could get dropped altogether. Trump has requested the charges against him be dismissed in that case because of his election, but even if the case gets revived—either with Willis or a different prosecutor—and the court declines to throw out Trump’s charges, it’s all but certain the case wouldn’t go to trial until after he leaves office.
Trump was indicted in the two federal cases in 2023, becoming the first sitting or former president to ever be federally charged. While the cases were supposed to go to trial in early 2024—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. U.S. District Judge Aileen 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 November filing 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 have been charged in state cases—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. He will not be able to have his allies’ charges dropped or pardon them, given the cases are in state court and not federal court.