A federal judge in the nation’s capital, acting at the request of a special federal prosecutor, on Monday blocked a criminal trial of Donald Trump while he serves his new term in the Presidency, but left a trial in the future open as an option. Trump, though, could erase that option once in office.
The prosecutor’s request and the swift grant of it by U.S. District Judge Tanya S. Chutkan came in the Washington, D.C., case accusing Trump of four federal crimes for his role in attempting to overturn his defeat in the 2020 election – a plot that included a violent attack on the U.S. Capitol on January 6, 2021. The Washington charges have not yet gone to trial.
Special Counsel Jack Smith also moved on Monday to dismiss – again without barring an eventual trial – an appeal he has filed regarding the 40 criminal charges against Trump in Florida involving mishandling of secret, highly sensitive government documents at his Mar a Lago golf club home after he left the Presidency in 2021. That case has already been ordered dismissed by a federal trial judge in West Palm Beach, but Smith’s team had been attempting to get it revived by a federal appeals court. The judge in that case, District Judge Aileen M. Cannon, dismissed all charges there after finding that Smith’s appointment to investigate and prosecute Trump was unconstitutional.
On Monday, Smith abandoned that appeal, but indicated that his team still views that action as not barring a trial on those charges after Trump leaves the White House. Smith also did not abandon his team’s attempt to revive criminal charges against two Trump aides at Mar a Lago, also accused in that case: Waltine Nauta and Carlos DeOliviera.
Trump as President, however, could end the option of a future trial of Trump and a future trial of his two aides.
As President, Trump would have available two potential maneuvers to end altogether his ever being tried in either of the two federal cases: first, he could order the Justice Department in his new Administration to drop any plan for a future trial in either case, or, second, he could pardon his two Florida aides in the Mar a Lago case and may also have the power to pardon himself in both cases. There might be political risks in doing either, but there may be no legal bar to either.
What Trump will do about the cases once he becomes President regarding Smith’s moves on Monday is unclear at this point. It was of interest, though, that his defense lawyers were consulted by the prosecutors in both cases, and they did not object. That is not likely, however, to bind him once he is President again.
Meanwhile, Smith team pointed out in a footnote in the filing in Washington that the developments in the federal case have nothing to do with two criminal cases that remain underway in state courts: a New York case in which he has been tried and found guilty by a jury on all 34 counts, and a Georgia case awaiting trial on ten criminal racketeering charges arising out of the attempt to overturn his defeat in the 2020 presidential election.
The next step in the New York state case is due next Monday, when Trump’s lawyers are scheduled to file a new request that the guilty verdicts be overturned, and that any new trial on the charges be blocked, all on the theory that Trump is now protected by presidential immunity created last summer by the Supreme Court. In the meantime, the jurist in that state case, Judge Juan M. Merchan, has put on hold temporarily a plan to impose a sentence for those convictions. State prosecutors have said they will oppose that new maneuver. Based on the convictions, Trump could be sentenced to up to four years in prison. The prosecutors have said one option open to Judge Merchan would be to delay sentencing until Trump leaves office.
There is a further potential complication in any potential future action against Trump in any criminal case, federal or state. That is whether Trump would be immune to prosecution even after he had left office (in 2028, at the end of his new term – a limit set by the Constitution’s 22d Amendment, ratified in 1951). The Supreme Court’s July 1 decision on immunity applies to former Presidents as well as those in office, if the crimes are based on actions that were clearly done while performing official duties.
Prosecutor Smith has argued, and did so again in his filings on Monday, that Trump has no immunity to the charges in the Washington case because none of the actions leading to that prosecution involved the performance of official duties. Thus, Smith’s view is that, since he was not abandoning the prospect of a future trial once Trump has left office, that option is, for Smith, still open. He did not make that point in the Mar a Lago case Monday, however.
The two federal cases are being dropped for the time being, Smith told both courts, because a Justice Department policy first adopted in 1973 and further solidified in 2000 bars any President from criminal prosecution while serving in office. The prosecutor said that policy is binding on his team because they are part of that Department.
Smith argued that the no-prosecution policy has no effect on his view of Trump’s alleged crimes, commenting that “the government stands fully behind” those accusations.
It is worth noting that Smith made his moves in the federal cases a full week earlier than he had planned to do, and that the courts had expected him to do. He requested time to think over his next moves, and promised a response by next Monday. No reason was given in either court for the earlier filing.
One possible explanation is that the new developments in the state case in New York are to occur next Monday, and Smith’s team may have wanted to let prosecutors in New York know in advance what he was going to do to help them shape their response to Trump’s new dismissal motion. Neither of Smith’s new filings commented on the timing issue.