Washington — Special counsel Jack Smith asked a federal district court in Washington on Monday to dismiss the charges against President-elect Donald Trump stemming from an alleged scheme to subvert the transfer of power after the 2020 election, bringing to a close the historic and unprecedented prosecution of the nation’s 45th and 47th president.
In newly filed court documents, federal prosecutors working in Smith’s office told U.S. District Judge Tanya Chutkan that they are seeking to close Trump’s case because Justice Department policy forbids the prosecution of a sitting president.
“After careful consideration, the department has determined that [the Office of Legal Counsel’s] prior opinions concerning the Constitution’s prohibition on federal indictment and prosecution of a sitting president apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated,” Smith wrote. “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.”
The special counsel noted the historic nature of Trump’s prosecution and subsequent election to the presidency, writing that the “department and the country have 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.”
But after consultation with the Justice Department’s Office of Legal Counsel, the special counsel said “the department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated.”
Smith said in his six-page motion that he conferred with Trump’s lawyers, and they do not object to the request to drop the case.
The judge is likely to grant Smith’s request to dismiss the case and toss the four federal counts against the president-elect, after which the special counsel is expected to submit a final report to the attorney general and resign. Smith’s request was expected, as he and the Justice Department were in talks about how to wind down the prosecution after Trump was elected to a second term earlier this month.
Smith was appointed special counsel by Attorney General Merrick Garland in November 2022 after Trump announced his third run for the White House. He took over two ongoing federal probes into Trump’s conduct, one focused on his alleged mishandling of classified records and the other tied to the 2020 election.
After a monthslong grand jury investigation, Smith obtained a four-count indictment against Trump that alleged he sought to resist the peaceful transfer of power following Joe Biden’s electoral victory and allegedly engaged in a criminal scheme in the process. Trump pleaded not guilty to all charges and denied wrongdoing.
The indictment laid out a sprawling scheme in which prosecutors accused Trump and his unnamed co-conspirators of working to undermine the legitimacy of the election results and halt the certification of the Electoral College votes in a bid to stay in power.
Trump’s legal team successfully delayed the case well into this year after they claimed Trump was immune from prosecution because he was president at the time the alleged conduct took place. Chutkan and a D.C. appeals court panel rejected the argument of presidential immunity. The case was put on hold as the Supreme Court then took up the matter.
Ultimately, the high court issued a landmark decision in the case, ruling in July that presidents are immune from federal criminal prosecution for actions taken in their official capacity as president of the United States. The Supreme Court’s 6-3 opinion written by Chief Justice John Roberts allowed for charges to be filed when a president acted in an unofficial or personal capacity.
Some of the alleged conduct included in Smith’s 2023 indictment was disqualified from the case and the special counsel later secured a superseding indictment against Trump in an attempt to contour the charges to the Supreme Court’s ruling. Trump pleaded not guilty to the new indictment earlier in September.
Before Smith asked her to dismiss the case, Chutkan was in the midst of applying the Supreme Court’s immunity decision to the case. In October, she made public a key filing from Smith that provided a comprehensive look at the evidence prosecutors amassed in their case against Trump. The special counsel and his team said that when he lost the 2020 race, Trump “resorted to crimes” to hold onto power.
The filing described how Trump and his aides allegedly planned to challenge the results of the 2020 election well before Election Day and pressured then-Vice President Mike Pence to reject electoral votes on Jan. 6, 2021.
In one striking passage, prosecutors said Trump replied, “So what?” when he was told that Pence could be in danger at the Capitol, where Congress had convened to tally state electoral votes. A mob of Trump’s supporters breached the building, leading to the evacuation of Pence and lawmakers.
The special counsel is expected to make a similar request to the U.S. Court of Appeals for the 11th Circuit, where judges were considering whether Smith’s other case against Trump — dealing with classified documents — should be revived after a Florida federal judge dismissed the case in July. Judge Aileen Cannon ruled Smith was unlawfully appointed to the role of special counsel by Garland and as a result, the case against Trump was invalid. The Justice Department appealed her ruling.
In addition to the two federal cases, Trump was charged by local prosecutors in separate cases in Fulton County, Georgia, and New York City. The New York case stemmed from a hush-money payment made to adult film actor Stormy Daniels after the 2016 election, and a jury found Trump guilty of 34 felonies in May, making him the first former president convicted of a crime.
He was set to be sentenced last month in New York, but it was delayed following the election. Trump pleaded not guilty to the charges brought against him in the sprawling racketeering case in Fulton County, which is related to an alleged effort to overturn the results of the 2020 election in Georgia.
Trump’s bid for a second term loomed over his prosecutions, as it was widely expected his federal cases would be dropped if he succeeded in winning the White House.
Now, with both of Smith’s cases closer to being settled, he is likely to file a final report with the attorney general, as is required by special counsel regulations, and is expected to resign from his post before Trump is sworn into office on Jan. 20, 2025, two sources familiar with Smith’s plans previously told CBS News. Garland pledged to publicly release all special counsel reports completed during his tenure — a commitment he has so far upheld — and he is likely to do so in the Smith cases, too.
Should the public release of Smith’s report stall for any reason and be delayed into the Trump administration, the odds of its disclosure become increasingly slim, since the president-elect has said he intends to nominate many of his top defense attorneys to leadership roles within the Justice Department.
Todd Blanche and Emil Bove, who defended Trump in the two federal cases and other matters in New York, are set to serve as deputy attorney general and principal associate deputy attorney general respectively, two powerful posts within the Justice Department. Trump has said he will nominate former Florida Attorney General Pam Bondi for the top job as attorney general.
He has also selected D. John Sauer to serve as solicitor general, who represents the government before the Supreme Court. Sauer argued the immunity case on behalf of Trump in April.
