Special counsel Jack Smith moved Monday to drop two landmark criminal cases against President-elect Donald Trump —one accusing him of plotting to overturn the 2020 election , and another alleging he unlawfully retained classified documents —on the grounds that Justice Department policy prohibits prosecuting a sitting president.
“That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the government’s proof, or the merits of the prosecution, which the government stands fully behind,” Smith’s team said in its request to dismiss the election-interference case.
Trump in a social-media post said, “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.”
Though Smith’s actions were expected, they formally marked the end of an unprecedented chapter in U.S. history.
Trump was the first former president to be charged with a crime. He has faced four prosecutions in total , with the federal cases joined by charges in New York and Georgia. Those state-level cases remain alive for now, but both face the prospect of dismissal or indefinite delays.
All of the prosecutions were slow to materialize. Trump had been out of office more than two years before he was indicted. That meant the cases played out while Trump was campaigning for a return to the White House, with prosecutors fighting tight time frames as well as the former president’s defense lawyers, who used an array of maneuvers to prevent the cases from advancing quickly.
“Given that the cases were started late in the Biden administration, and given the likely appeals of any guilty verdicts, we were never going to have the final word on these cases before the election,” University of Virginia law professor Saikrishna Prakash said.
Trump also used the charges as a centerpiece of his presidential campaign , arguing his opponents were using the justice system to target him unfairly.
A Trump-appointed federal judge in Florida already dismissed the classified documents case earlier this year, ruling that Smith was unlawfully appointed. The special counsel’s office had appealed that decision, but on Monday dropped its bid to revive that prosecution against Trump.
Smith moved to dismiss the election-interference case “without prejudice,” leaving open the theoretical possibility that some future prosecutor could attempt to bring charges anew. Judge Tanya Chutkan granted the request.
Attorney General Merrick Garland appointed Smith as special counsel in November 2022, just days after Trump announced he would make another bid for the presidency. The move to appoint an independent prosecutor, Garland said, was designed to prevent the appearance of political influence at a Justice Department overseen by Trump’s then-opponent, President Biden. After the charges were announced, the department became a political football anyway.
Following this month’s election, the special counsel’s team began evaluating how to wind down the federal cases. Smith is expected to step down as special counsel before Trump’s inauguration.
The fates of the two state cases could be determined soon.
In New York, Trump was convicted of 34 state felonies earlier this year for covering up hush money paid to a porn star. His sentencing, which had previously been scheduled for Tuesday, is now on hold .
Trump has asked the presiding judge to toss the conviction. Manhattan District Attorney Alvin Bragg , a Democrat who brought the case, has said Trump’s conviction should stand, but he has signaled a willingness to delay additional proceedings until after the president-elect completes his next term in office.
Lawyers for Trump and Bragg are expected to file additional arguments early in December, leaving the matter in the hands of the judge.
Manhattan District Attorney Alvin Bragg speaks after the guilty verdict in former U.S. President Donald Trump’s criminal trial over charges that he falsified business records to conceal money paid to silence porn star Stormy Daniels in 2016, at a press conference in New York, U.S., May 30, 2024. REUTERS/Brendan McDermid
In Georgia, a state-level election-interference case against Trump is on shaky ground. It has been on hold for months as a state appeals court weighed a bid to disqualify the Fulton County district attorney, Fani Willis , over a revelation that she had a romantic relationship with a lawyer she hired to manage the prosecution. Aside from that drama, the case is imperiled by Trump’s election, as well as a Supreme Court ruling in July that granted presidents significant immunity for actions taken as part of their official duties.
Smith’s election-interference case, originally filed in August 2023 , was arguably the most ambitious of all the prosecutions. His team offered sweeping allegations that Trump pulled the levers of power to pressure state officials, along with Vice President Mike Pence and the Justice Department, to advance his baseless claims of election fraud and help him remain in power, in a chain of events that culminated in the Jan. 6, 2021, attack on the Capitol.
The Supreme Court’s immunity decision appeared to be a significant blow to the special counsel’s work, but Smith held his ground with a reworked indictment that left in place the same charges Trump originally faced. It landed at the height of campaign season, fueling Trump’s criticism of Smith, whom he vowed to fire “within two seconds” of taking office.
The Justice Department’s policy against prosecuting a sitting president rests on the notion that doing so would interfere with the executive’s ability to fulfill his constitutional role. Smith on Monday noted that the Trump situation was unprecedented because he was a private citizen when he was indicted. But after internal consultations, the department concluded that the policy applied and that the cases had to be dismissed before Trump’s inauguration.
In the classified documents case, prosecutors charged Trump with deliberately retaining sensitive documents related to U.S. intelligence and defense plans, even after government officials demanded their return . Trump and two aides, Walt Nauta and Carlos De Oliveira , were also accused of seeking to have security footage from Mar-a-Lago—where the documents were being held—deleted so it couldn’t be turned over to a grand jury.
The Justice Department appeal involving the two aides remains ongoing.
“Unlike defendant Trump, no principle of temporary immunity applies to them,” Smith said in a court filing. Trump-appointed Justice Department leadership could order that appeal dropped after taking office next year.
Under the special counsel regulations, Smith is set to prepare a report on his investigation, which the attorney general could then make public.
Write to C. Ryan Barber at ryan.barber@wsj.com
