Even though both federal criminal prosecutions against President-elect Donald Trump have been dismissed, the charges could return against him again once he leaves office in 2029.
Special counsel Jack Smith had his two cases dismissed without prejudice, meaning they can be renewed in the future. Mr. Trump’s legal team has not moved to have them dismissed with prejudice.
Brian Claypool, a trial lawyer in California, said Mr. Smith moved to dismiss the cases before Inauguration Day because he “wanted to control the narrative and keep these charges alive.”
“Otherwise, Trump would have fired him after the inauguration, then Pam Bondi [Mr. Trump’s nominee for attorney general] would have come in and had all of the charges dismissed ‘with prejudice,’ meaning they are expunged forever and cannot be revived,” Mr. Claypool said.
Mr. Smith’s move means that some of his federal allegations related to Jan. 6, 2021, and Mr. Trump’s challenges of the 2020 election result could resurface if a Democrat wins the White House in 2028.
“If a Republican wins in 2028, then the statute of limitations will likely have run on these charges by the time 2032 rolls around. If a Democrat wins in 2028, he/she could have the new Attorney General refile the charges against Trump since he would be a private citizen by then,” Mr. Claypool said in an email to The Washington Times.
The Justice Department, though, could have a harder time bringing a case against Mr. Trump years from now with evidence being compromised or lost and witnesses possibly dying or not having fresh memories, he added.
Regardless, it’s questionable if the Justice Department would ever renew the charges against Mr. Trump, who would be 82 years old when his term ends in 2029.
On Tuesday, a federal appeals court granted Mr. Smith’s request to dismiss the case against Mr. Trump for allegedly mishandling classified documents at his Mar-a-Lago estate in Palm Beach, Florida.
That ended the federal cases against the president-elect.
Mr. Smith previously appealed a federal judge’s decision to dismiss the case. Judge Aileen Cannon dismissed the case in July, reasoning Mr. Smith was unlawfully made special counsel.
The special counsel had been pursuing an appeal in the case when Mr. Trump won the 2024 election.
On Monday, a federal judge in Washington dismissed the election fraud charges Mr. Smith brought against Mr. Trump for challenging the 2020 election result, allegedly spurring the Jan. 6 riot at the Capitol.
The special counsel cited the long-standing Office of Legal Counsel opinion that a sitting president cannot be prosecuted. Both disputes were dismissed without prejudice.
Mr. Smith had charged Mr. Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding and conspiracy against rights in his D.C. prosecution. In the other federal case, he was charged with retaining classified documents, making false statements and obstruction.
Because Mr. Trump was indicted within the statute of limitations for the charges, they can be refiled when he eventually leaves office.
Jeffrey Swartz, a professor at Cooley Law School, said Mr. Trump’s team could appeal to have the charges dismissed with prejudice, but that would likely be unsuccessful.
“The D.C. Circuit is certainly not going to grant that relief,” Mr. Swartz said. “They weren’t going to get it. They didn’t want to waste their time.”
The president-elect is still awaiting sentencing in New York after a Manhattan jury convicted him in May of falsifying business records of hush money payments to porn actress Stormy Daniels during his 2016 campaign. The sentencing has been postponed as the judge considers dismissing the case.
Mr. Trump is also being prosecuted in Georgia on state racketeering charges for his efforts to overturn the 2020 election results in that state.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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