In what feels to many of us like a crushing blow to justice, special counsel Jack Smith on Monday moved to dismiss both of President-elect Donald Trump’s federal criminal prosecutions — the 2020 election subversion case in Washington, D.C., and the classified documents/obstruction of justice/espionage case in Florida. Judge Tanya Chutkan promptly dismissed the D.C. case, and a dismissal of the documents case almost certainly will soon follow. These democracy-busting developments make clear that, at least for the four years a president is in office, he is above the law — the functional equivalent of a king.
How did we get here?
Let’s look at the D.C. case first. In a four-count indictment, Trump was charged for crimes he allegedly committed while he was president, including a conspiracy to deprive the American people of their voting rights by unlawfully trying to retain the office of the presidency, contrary to the expressed will of the American people when they elected Joe Biden as their president.
Smith presented evidence to a grand jury in Washington, including countless Republican witnesses, and the grand jury concluded there was ample evidence to indict Trump. As that case headed for trial, Trump’s lawyers filed a motion claiming that presidents have absolute immunity against prosecution for crimes they commit while in office.
Notwithstanding that there is no law, no appellate court precedent and no constitutional support for Trump’s claim of presidential immunity, the six ideologically conservative members of the Supreme Court decided to conjure up presidential immunity seemingly out of thin air, essentially bestowing the potential power of lawlessness on American presidents. Notably, the Supreme Court did not conclude that Trump committed no crimes. Instead, it returned the case to Judge Chutkan to determine which of Trump’s crimes should enjoy immunity from prosecution and which should not.
While that litigation was ongoing, Trump won the 2024 election. But because the Justice Department’s Office of Legal Counsel is of the opinion that a sitting president cannot be prosecuted, Smith was compelled to dismiss Trump’s cases.
So where does that leave us? It’s worth remembering that the allegations in the Trump D.C. indictment include five areas of alleged criminality: the baseless, bad-faith court challenges to the 2020 election results filed by Trump’s lawyers; Trump’s pressure campaign on state elected officials (recall Trump’s recorded request to “find 11,780 votes”); the fake elector scheme; Trump’s pressuring Vice President Mike Pence to refuse to certify Biden’s election win; and, when all else failed, a call to his supporters on Jan. 6 to march to the U.S. Capitol, “fight like hell” or “you won’t have a country anymore,” and “stop the steal,” a not-so-thinly-veiled command to stop the certification of the election results.
Is there any hope for accountability of Trump in the future? I fear the answer is… not much.
But there is one point of light amid the darkness. There are two ways for a judge to dismiss a criminal case: “with prejudice” or “without prejudice.” With prejudice means that a case can never be re-brought and prosecuted in the future. Without prejudice means the case can be re-indicted and prosecuted in the future. Smith asked Chutkan to dismiss the case “without prejudice,” and she did so.
But the justice gods giveth and the justice gods taketh away. There are several ways Trump and his incoming attorney general can snuff out the possibility of his criminal cases being re-brought in the future. First, Trump could direct his attorney general to file a motion asking Chutkan to reconsider her earlier dismissal and modify it to a dismissal with prejudice. Thankfully, there are some substantive and procedure hurdles that would make such a request an uphill climb.
Second, because the Supreme Court has ruled that a president can exercise his core constitutional functions — like issuing pardons — not only with immunity from prosecution, but with a strict prohibition against even investigating a president’s motive or intent in exercising said power, Trump could simply pardon himself for all crimes he committed during his lifetime, a cradle-to-the-grave self-pardon. That is the kind of quasi-royal power on which the Supreme Court has already put its stamp of approval.
Third, in the event he opts not to go the self-pardon route, Trump could simply negotiate a quid pro quo deal with Vice President-elect J.D. Vance. He could resign at some point during his presidency and shuffle off to Mar-a-Lago to play golf, and have Vance pardon him for all crimes he may have committed, a la President Gerald Ford pardoning Richard Nixon.
And don’t even get me started on how the statute of limitations provides that someone has to be prosecuted within five years of the date of the offense or the case is time-barred. That is another possible impediment to prosecuting Trump, assuming he serves his entire term.
Assuming Trump also escapes criminal responsibility for the 34 felony guilty verdicts delivered by a New York jury for crimes he committed before he was elected the first time around, that will mean Trump would avoid accountability for crimes he committed before, during and after serving as president.
Are we still inclined to recite the hollow mantra that, in America, no man is above the law?
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This article was originally published on MSNBC.com
