The Federal Cases Against President Trump

By: Riley Meyer

Edited by: Melany Torres and Olivia Paik

Following the reelection of Donald Trump, special counsel Jack Smith is reevaluating the federal cases against the President-elect. Smith asked to delay these cases to assess the “unprecedented circumstances” of Trump’s election, the inauguration, and how to move forward per the Department of Justice’s policy. [1] In November  2022, Attorney General Merrick Garland appointed Jack Smith as special counsel on two cases. [2] One case involves Trump’s handling of classified documents, and the other case involves Trump’s federal election interference. These cases were progressing quickly before the Election Day, but now require a reassessment.

The Federal appeals court granted Smith's request to pause his appeal of President-elect Trump’s classified documents case until December 2. [3] Smith’s request came days after he asked a federal judge in Washington, D.C. for a pause in the criminal case charging Trump with crimes relating to his attempt to reverse the election results of the 2020 presidential election. [4] In his request, Smith wanted to hold the appeal in abeyance and push the next filing deadline to “afford the government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with the Department of Justice policy.” [5]

The Department of Justice has a policy that prohibits a sitting president from facing criminal prosecution while in office. [6] This policy has two purposes. Firstly, to allow the executive branch to carry out its constitutional duties without undermining its abilities. [7] Secondly, the executive branch has prosecutorial discretion, meaning that the president has authority over whether to indict themselves once inaugurated. [8] Trump, once president, could have his appointed attorney general toss out both cases. Thus, Smith must now wind down the proceedings of these cases so as not to conflict with policy.

Jack Smith and his team are planning to resign before Trump’s inauguration. Trump disclosed in a radio interview that he would fire Smith immediately when he is reelected, saying, “It’s so easy I would fire him within two seconds.” [9] The final question about the case will be whether Smith’s final report, which contains his charging decision, will be publicly available before Inauguration Day. [10] The Department of Justice requires the special counsel’s office to provide a confidential report to Attorney General Merrick Garland. [11] Garland decides if it will be publicized. If not publicized by Inauguration Day, the next attorney general could not release Smith’s final report.

The Department of Justice seems to intend to drop both cases before Inauguration Day, as suggested by these recent legal moves. However, Trump’s New York criminal conviction still stands, and prosecutors are urging the judge overseeing the sentence to consider options other than dismissal. One of the possibilities will be to hold off the guilty verdict until Trump leaves office in 2029. [12] Time will give a clearer indication of the next moves in the president-elect’s cases, but as of now, it appears that Trump will remain free of prosecution during his presidential term.

Notes:

1. Charalambous, Peter, and Katherine Faulders. “Court Pauses Appeal of Trump’s Classified Documents Case - ABC News.” ABC News, ABC News, 16 Nov. 2024, https://abcnews.go.com/US/court-pauses-appeal-trumps-classified-documents-case/story? id=115935246.

2. “Department of Justice | Special Counsel Jack Smith.” United States Department of Justice, 21 Nov. 2022, https://www.justice.gov/sco-smith.

3. Charalambous, Peter, and Katherine Faulders. “Court Pauses Appeal of Trump’s Classified Documents Case - ABC News.” ABC News, ABC News, 16 Nov. 2024, https://abcnews.go.com/US/court-pauses-appeal-trumps-classified-documents-case/story? id=115935246.

4. Mangan, Dan. “Trump Documents Case: Special Counsel Jack Smith Seeks Pause.” CNBC, CNBC, 13 Nov. 2024, https://www.cnbc.com/2024/11/13/trump-classified-documents-special-counsel-jack-smh-appeal-pause.html. 

5. Charalambous, Peter, and Katherine Faulders. “Court Pauses Appeal of Trump’s Classified Documents Case - ABC News.” ABC News, ABC News, 16 Nov. 2024, https://abcnews.go.com/US/court-pauses-appeal-trumps-classified-documents-case/story? id=115935246.

6. “Office of Legal Counsel | A Sitting President’s Amenability to Indictment and Criminal Prosecution | United States Department of Justice.” Department of Justice | Homepage | United States Department of Justice, 9 July 2014, https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictmnt-and-criminal-prosecution. 

7. Ibid. 

8. “Indictment of Presidents | Wex | US Law | LII / Legal Information Institute.” LII / Legal Information Institute, https://www.law.cornell.edu/wex/indictment_of_presidents. Accessed 23 Nov. 2024.

9. Jarrett, Laura, et al. “Special Counsel Jack Smith and Team to Resign before Trump Takes Office.” NBC News, NBC News, 13 Nov. 2024, https://www.nbcnews.com/politics/justice-department/special-counsel-jack-smith-team-rsign-trump-takes-office-rcna179928. 

10. Ibid. 

11. Ibid.   

12. Epstein, Kayla. “Prosecutors Back Delaying Trump Sentence until He Leaves White House.” BBC Home - Breaking News, World News, US News, Sports, Business, Innovation, Climate, Culture, Travel, Video & Audio, BBC News, 19 Nov. 2024, https://www.bbc.com/news/articles/czr72m57e1jo.

Bibliography:

Charalambous, Peter, and Katherine Faulders. “Court Pauses Appeal of Trump’s Classified Documents Case - ABC News.” ABC News, ABC News, 16 Nov. 2024, https://abcnews.go.com/US/court-pauses-appeal-trumps-classified-documents-case/story?id=115935246. 

“Department of Justice | Special Counsel Jack Smith.” United States Department of Justice, 21 Nov. 2022, https://www.justice.gov/sco-smith.

Epstein, Kayla. “Prosecutors Back Delaying Trump Sentence until He Leaves White House.” BBC Home - Breaking News, World News, US News, Sports, Business, Innovation, Climate, Culture, Travel, Video & Audio, BBC News, 19 Nov. 2024, https://www.bbc.com/news/articles/czr72m57e1jo.

“Indictment of Presidents | Wex | US Law | LII / Legal Information Institute.” LII / Legal Information Institute, https://www.law.cornell.edu/wex/indictment_of_presidents. Accessed 23 Nov. 2024.

Jarrett, Laura, et al. “Special Counsel Jack Smith and Team to Resign before Trump Takes Office.” NBC News, NBC News, 13 Nov. 2024, https://www.nbcnews.com/politics/justice-department/special-counsel-jack-smith-team-resign-trump-takes-office-rcna179928. 

Mangan, Dan. “Trump Documents Case: Special Counsel Jack Smith Seeks Pause.” CNBC, CNBC, 13 Nov. 2024, https://www.cnbc.com/2024/11/13/trump-classified-documents-special-counsel-jack-smith-appeal-pause.html. 

“Office of Legal Counsel | A Sitting President’s Amenability to Indictment and Criminal Prosecution | United States Department of Justice.” Department of Justice | Homepage | United States Department of Justice, 9 July 2014, https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution.