General Discussion

How Jack Smith quietly ensured Trump’s Jan. 6 case isn’t actually going anywhere
Smith's move could be an effort to keep the cases alive in the long term.
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In addition, by filing his motions pre-emptively, Smith was able to explain his reasons for dismissing the case, rather than allowing Trump’s future AG to mischaracterize them. According to Smith, he was dismissing the case not because of the merits or strength of the cases, but because he had to. As Smith explains, the DOJ’s Office of Legal Counsel, whose opinions are “binding” on the special counsel, has concluded that a sitting president may not be indicted or criminally prosecuted under the Constitution. OLC reasoned that criminal charges would make it impossible for a president to carry out his constitutional duties in light of the distraction of preparing a criminal defense, the public stigma that would hamper his leadership role and the obstacles prison would impose on his ability to perform his duties.

But Smith was careful to note that this relief from criminal prosecution is “temporary,” and ends when the president leaves office. Smith cites OLC as concluding that this form of immunity for a sitting president “would generally result in the delay, but not the forbearance, of any criminal trial” That is, Trump gets a reprieve, but only during his term in office.

Of course, as in most criminal cases, the statute of limitations here is five years from the date of the last act alleged in the indictments. In the Jan. 6 case, the last alleged conduct occurred in January 2021, so the deadline for filing new charges would typically be January 2026. In the documents case, in which the last act occurred in August 2022, the statute will expire in August 2027. Both dates will arrive well before Trump’s term ends. But Smith’s brief contains another tell when he writes that OLC has “noted the possibility that a court might equitably toll the statute of limitations to permit proceeding against the President once out of office.” That is, a court could call a timeout, pausing it on Trump’s inauguration day on Jan. 21, 2025, and then restarting the clock when Trump leaves office in 2029. That would give prosecutors plenty of time to refile charges. Certainly, the tolling issue would be litigated, but by dismissing the case now, Smith preserves this issue for future prosecutors to argue.
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As OLC has written, the bar on prosecuting a president is not forever — a president “is ultimately accountable for his misconduct that occurs before, during, and after his service to the country.” As Smith writes, “the president lacks the prerogatives of a king and his protection from prosecution.”