Justice Unserved: The End of Jack Smith's Landmark Cases against President-elect Trump

The 2024 Presidential election recently saw former President Donald Trump emerge as victor on the morning of November 6th. In one of the most consequential races of recent history, President Trump won not only the electoral vote but also the popular vote. 

Over the last 4 years, Trump has faced a myriad of legal challenges for his actions in office during his first term, with his team spending much of the past four years fighting court cases. However, with the Supreme Court's July ruling on Presidential immunity, years of work to prosecute the former President will likely prove useless. Special prosecutor Jack Smith, appointed to oversee and prosecute the case involving Trump's obstruction, has faced threats of removal from President elect-Trump, even before Trump's re-election win.

Attorney General Merrick Garland appointed Jack Smith, but upon taking office, Trump could easily remove him from his position and end the criminal investigations against him. In an interview with radio host Hugh Hewitt, Trump claims he would fire Smith "within two seconds." [1] Trump has accrued over 80 felony charges from his hush-money case, classified documents case, January 6th case, and more. [2] With Jack Smith gone, the corresponding trials will also disappear, although there are more pressing reasons than just his firing. 

In July, the Supreme Court asked a question that had not been asked before: is the President immune from criminal prosecution for official acts committed while in office? The central point in question was the idea of "official acts," or whether the difference between official and unofficial acts is enough to grant immunity in certain circumstances. Chief Justice Roberts argued that Trump's actions involved using the DOJ or attorney general. Since those were official actions, he cannot be prosecuted for them as he is exercising his constitutional powers as President. [3] However, Roberts acknowledged that Trump could be prosecuted for some of his unofficial actions, but he neglected to determine which actions were unofficial. Many argue that this does not give lower courts enough time to decide on his unofficial or official conduct, as Trump is set to be inaugurated in January. But why cannot presidents be tried while in office?

Beyond the imminent firing of special counsel Jack Smith, the Department of Justice maintains its longtime law that the prosecution of a sitting President "would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions." [4] Created to stop potential roadblocks caused by presidential opponents, the DOJ has safeguarded this rule with presidential actions since 2000. Seeing as Trump will retake office in 2025, Jack Smith will have to conclude his case before January, according to DOJ policy that the case cannot continue if Trump is in office. 

Trump's legal team has been fighting cases from Jack Smith, Fani Willis, and Juan Merchan by extending the dates for sentencing or adding appeals, and now that Trump will take office, the extensions will very likely mean the cases will die, have to wait until the end of his term in 2029. [5]

Considering Smith's imminent firing, inability to continue the case in January, and the recent Supreme Court decision, Smith has decided to wind down his cases against the former President. He asked the Judge in the case to vacate the deadlines in the schedule [6], and the case will likely end before January 2025.

Sources:

1.   Interview with Donald Trump, President-elect, Hugh Hewitt Show, October 24, 2024
2. Ibid. 
3. Trump v. United States, 23-939 (2024)
4. US Department of Justice, "A Sitting President's Amenability to Indictment and Criminal Prosecution," (2000) https://www.justice.gov/olc/opinion/sitting-president's-amenability-indictment-and-criminal-prosecution
5. Shirin Ali, Looks Like Trump Got Away With It, Slate, November 8, 2024. https://slate.com/news-and-politics/2024/11/trump-trials-sentencing-election-2024-jack-smith-what-now.html
6. United States v. Trump, 1:23-cr-00257-TSC (2024)