Special counsel Jack Smith arrives to speak to members of the media at the U.S. Department of Justice building in Washington, on Aug. 1, 2023. It is believed that the case against Trump will wrap up as it is DOJ policy not to prosecute sitting presidents for fear of paralyzing the functioning of the federal government.SAUL LOEB/AFP/Getty Images
Special Counsel Jack Smith has started winding down the federal prosecution of Donald Trump for trying to overturn the 2020 election, potentially closing the most serious of his criminal cases and validating his strategy of trying to delay proceedings until after the election.
Mr. Trump still faces sentencing in his New York hush-money trial later this month, along with a state-level prosecution in Georgia and two civil judgments against him. But with all of these cases in different states of appeal, it is increasingly possible that he may escape legal sanction as he begins his second term in the White House.
If he does, it would be a remarkable turnaround from the aftermath of Jan. 6, 2021, when both Congress and the judicial system seemed determined to hold him accountable.
Mr. Smith on Friday asked federal Judge Tanya Chutkan of Washington’s district court to pause all filing deadlines in the case, to which she agreed. He said that he would file a further status report by Dec. 2. In a filing, he said he needed time to decide how to proceed since Mr. Trump won Tuesday’s presidential election.
“The government respectfully requests that the court vacate the remaining deadlines in the pretrial schedule to afford the government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy,” he wrote.
The Department of Justice has had a legal opinion since the 1970s that sitting presidents should not be prosecuted for fear of paralyzing the functioning of the federal government. Unidentified department officials this week told U.S. media that, because of this policy, Mr. Smith is looking to wrap up both of his cases against Mr. Trump.
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Mr. Smith is also prosecuting the former president in Florida for refusing to return classified documents after leaving office. A Trump-appointed judge on that case, Aileen Cannon, slowed proceedings down before ultimately throwing it out. Mr. Smith had appealed her ruling in a bid to have the prosecution restarted.
The president-elect is under indictment at the state level in Georgia for his efforts to reverse the 2020 election result there. But he and his co-defendants are trying to have that case tossed on the basis that the district attorney who brought it, Fani Willis, had a relationship with the lead prosecutor, Nathan Wade.
Mr. Trump was convicted in May of 34 felonies for falsifying business documents related to a payment to porn star Stormy Daniels ahead of the 2016 election. The money was meant to buy her silence about a tryst she says she had with Mr. Trump. The former president is currently scheduled to be sentenced on Nov. 26 in Manhattan.
He is attempting to have the hush-money case thrown out on the basis of a Supreme Court ruling in July that conferred immunity on him for official actions taken as president. That ruling was only one of several things that have already helped Mr. Trump push off Mr. Smith’s election case long enough to see it likely dropped.
Mr. Trump was impeached in January, 2021, over his efforts to overturn the election and for stoking the attack on the U.S. Capitol. At his trial in the Senate, seven Republicans joined all Democrats and independents to vote for convicting him, which would have barred Mr. Trump from holding office again.
But the vote fell short of the two-thirds necessary for conviction, in part because Republican Senate Leader Mitch McConnell, despite blaming Mr. Trump for the riot, said it was better for the court system to handle the case.
However, it took Attorney-General Merrick Garland 22 months to appoint Mr. Smith. The special counsel indicted Mr. Trump in the documents case the following June and in the election case in August. He attempted to have the former president brought swiftly to trial but Mr. Trump succeeded in having proceedings pushed back while he pursued a claim of presidential immunity.
Ultimately, the Supreme Court’s conservative majority found that presidents could only be tried on actions not taken as part of their official duties. Mr. Smith refiled the case, dropping from it Mr. Trump’s efforts to put pressure on the Department of Justice to help him overturn the election after the court found this was part of his official duties.
In the new indictment, Mr. Smith argued Mr. Trump’s other actions, such as putting pressure on state legislators and then-vice-president Mike Pence, were undertaken in his capacity as a presidential candidate and not as president. It was then up to Justice Chutkan to decide whether, given the court’s ruling, the new indictment could proceed. The matter was still up in the air when Mr. Trump won the election this week.
Mr. Trump was widely expected to have the federal cases against himself dropped when he returned to office by appointing an attorney-general who would fire Mr. Smith and shut down the prosecution.
The former president himself has repeatedly threatened Mr. Smith and other judicial officials. In a radio interview last month, he said Mr. Smith should be deported or sent into exile. It was unclear where Mr. Trump intended that Mr. Smith, who is a U.S. citizen, should be sent.
“We should throw Jack Smith out with them, the mentally deranged people,” Mr. Trump said. “Jack Smith should be considered mentally deranged and he should be thrown out of the country.”