What Happens To The Smith Prosecutions of Trump?

Tom Borman, LawFuel contributor

Donald Trump threatened to fire Special Counsel Jack Smith ‘within two seconds’ should he win the election.

He’s won. Smith will effectively be fired. And the prosecutions will be discontinued.

Special Counsel Jack Smith brought two major prosecutions against Donald Trump, one alleging mishandling of classified documents at Mar-a-Lago and a second about efforts to overturn the 2020 election results.

With Trump’s election victory, the Justice Department know he can no longer face prosecution while in office, in accordance with decades-old department legal opinions.

Jack Smith is now taking steps to wind down the two federal criminal cases against Donald Trump and before Trump is inaugurated in January, avoiding a direct confrontation.

The winding down does not reflect on the merits of Smith’s case, but rather are in accordance with constitutional convention.

Legal commentator David Lat published a useful ‘take’ on the situation regarding the Smith and the other pending cases against Trump in his substack newsletter Original Jurisdiction here –

The extent to which the DOJ will become a personal tool of Donald J. Trump is unclear. Here’s something that is clear: Special Counsel Jack Smith’s two cases against Trump—the election-interference case that’s before Judge Tanya Chutkan (D.D.C.), and the classified-documents case that’s on appeal to the Eleventh Circuit, after being dismissed by Judge Aileen Cannon (S.D. Fla.)—are going away.

As Professor Ray Brescia of Albany Law School told me, “It seems clear that Smith is preparing to wind down his investigation and prosecution based on the longstanding Department of Justice policy of not prosecuting a sitting president. I am assuming he will step down before Inauguration.” (According to The Washington Post, Smith could still give Trump a little parting gift: a report of his findings, which could be scathing—and which Attorney General Merrick Garland would presumably make public, as he has pledged to do regarding special-counsel reports.)

So DOJ policy prohibits the prosecution of a sitting president, as noted by Professor Brescia. But does it require automatic dismissal of previously filed cases, without any action from Trump or his attorney general? Or does Trump have to “own it” politically, by taking some affirmative step to oust Jack Smith? (Not that I think Trump would have a problem with that—he’s previously said he would “fire [Smith] within two seconds” if reelected, and even if Smith should actually be dismissed by the attorney general, I could totally see Trump picking up the phone, calling Smith himself, and barking at him, Apprentice-style, “You’re fired!”)

In an October 2000 OLC memo, then-OLC head Randy Moss (now Judge Randy Moss) concluded that “a sitting President is immune from indictment as well as from further criminal process.” Moss also concurred with a 1973 OLC memo stating that “a grand jury should not be permitted to indict a sitting President, even if all subsequent proceedings were postponed until after the President left office.” But I’m unaware of any OLC memo specifically addressing the current situation, in which a former president gets indicted and then… becomes president again. (I can’t fault OLC for not exploring this issue; when he takes office in January, Trump will become only the second president, after Grover Cleveland, to serve nonconsecutive terms.)

The state prosecutions against Trump—the New York hush-money case in which Trump is scheduled to be sentenced later this month, and the Georgia election-interference case tied up in appellate proceedings because of the Fani Willis-Nathan Wade romance—are not controlled by DOJ policies. But they are, as a practical matter, going away—at least until Trump finishes his term, if not forever.

In the New York case, Trump is scheduled to be sentenced on November 26.

But as legal experts told Politico, it’s unlikely that Justice Juan Merchan will proceed with sentencing a president-elect. Even a noncustodial sentence like probation would present issues—e.g., can a sitting U.S. president be required to check in with a state probation officer? But whether Justice Merchan would postpone sentencing until after Trump leaves office or get rid of the case entirely—perhaps by granting Trump’s pending motion to dismiss based on the Supreme Court’s immunity ruling—is unclear.

As for the Georgia case, many analysts agree with Steve Sadow, Trump’s lead attorney in Georgia, who previously argued that under the Supremacy Clause, state criminal prosecutions can’t move forward against Trump as long as he’s a sitting president. Whether that case would go away completely or could return in 2029 is also uncertain. But again, practically speaking, it’s going dormant—and will remain that way for years.