The request comes to Judge Tanya Chutkan in a six-page motion. Mr. Smith acknowledges that it “has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President.” Trump takes office January 20.
Mr. Smith writes that America has “never faced the circumstance here, 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.” The special counsel consulted the DOJ’s Office of Legal Counsel, which determined that “this prosecution must be dismissed before the defendant is inaugurated.”
The special counsel explains that the prohibition on prosecuting a sitting president 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.” Mr. Smith reckons that if Trump had not won, the government could have taken the case to a jury — and won a conviction.
He’s the President-elect, not the President, correct? So he could still be fair game but as Sunny noted on Twitter, “Jack Smith continues his undisputed heavyweight championship title of failing to secure final, non-overturned convictions of top politicians. Bob McDonnell. John Edwards. Now Donald Trump.”
And in just over four years, Trump won’t be President at all:
I'll add they are moving to dismiss "without prejudice," which theoretically means they could refile.
— LB (@beyondreasdoubt) November 25, 2024
Unlikely as it seems that Smith might refile in 2029, Trump could always pardon himself just to watch the heads explode.
CORRECTION: That’s Smith’s Democrat-appointed successor, should there be one.