Trump election case is tossed after special counsel Jack Smith requests dismissal citing 'categorical' DOJ policy

The judge overseeing Donald Trump's election interference case dismissed the case Monday, after special counsel Jack Smith asked the judge to toss the case due to a long-standing Justice Department policy that bars the prosecution of a sitting president.

Smith earlier Monday filed a motion to dismiss the case, as well as the appeal of Trump's classified documents case, ahead of Trump's impending inauguration, due to the DOJ's presidential immunity policy and not because the charges lacked merit.

Smith also asked the judge in Trump's classified documents case that his appeal against Trump's two co-defendants in that case, Walt Nauta and Carlos De Oliveira, be allowed to continue.

MORE: Trump's trials: Prosecutors wind down federal cases as state cases could be placed on hold

U.S. District Court Judge Tanya Chutkan dismissed the election interference charges against Trump without prejudice, leaving open the highly unlikely possibility of a future prosecution.

In a two-page opinion, Judge Chutkan wrote that dismissing the case without prejudice is "appropriate" and would not harm the "public interest," agreeing with Smith's argument that Trump's immunity would not cover him when he leaves office.

"Dismissal without prejudice is also consistent with the Government's understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office," Chutkan wrote.

However, it's extremely unlikely that any prosecutor would attempt to bring the same charges in the future, in part because the statute of limitations for the alleged crimes will have expired by the time Trump leaves office in four years.

Trump's lawyers did not oppose the government's motion to dismiss the case without prejudice.

"That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Government stands fully behind," Smith stated in his motion to dismiss.

"The country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President," the motion said. "After careful consideration, the Department has determined that OLC's prior opinions concerning the Constitution's prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated."

Smith moved to dismiss his appeal of the charges against Trump in his classified documents case, in which Trump pleaded not guilty last year to 40 criminal counts related to his handling of classified materials after leaving the White House, after U.S. District Judge Aileen Cannon dismissed the case in July over her finding that Smith was improperly appointed to his role. Smith appealed that ruling to the 11th Circuit Court of Appeals, arguing that legal precedent and history confirm the attorney general's ability to appoint special counsels.

Monday's filing asks the court to dismiss that appeal -- but it seeks to keep the appeal in place for Nauta and De Oliveira, two Trump employees who pleaded not guilty to obstruction charges.

"The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them," the filing said.

MORE: Special counsel asks judge to pause his appeal in Trump's classified documents case

In a statement, John Irving, a lawyer for De Oliveira, said, "The Special Counsel's decision to proceed in this case even after dismissing it against President Trump is an unsurprising tribute to the poor judgment that led to the indictment against Mr. De Oliveira in the first place. Just because you can doesn't mean you should. If they prefer a slow acquittal, that's fine with us."

Trump campaign spokesperson Steven Cheung, in a statement, called Smith's motions to dismiss a "major victory for the rule of law" and said, "The American People and President Trump want an immediate end to the political weaponization of our justice system and we look forward to uniting our country."

In the election interference case, Trump last year pleaded not guilty to federal charges of undertaking a "criminal scheme" to overturn the results of the 2020 election by enlisting a slate of so-called "fake electors," using the Justice Department to conduct "sham election crime investigations," trying to enlist the vice president to "alter the election results," and promoting false claims of a stolen election during the Jan. 6 attack on the Capitol, all in an effort to subvert democracy and remain in power.

Smith subsequently charged Trump in a superseding indictment that was adjusted to respect the Supreme Court's July ruling that Trump is entitled to immunity from criminal prosecution for official acts undertaken as president.

Earlier this month, Judge Chutkan canceled the remaining deadlines in the election interference case after Smith requested time to "assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy" following Trump's election.

Judge Chutkan had been in the process of considering how the case should proceed in light of the Supreme Court's immunity ruling.

Smith had faced filing deadlines of Dec. 2 for both the election interference case and the classified documents case, after Smith's team requested more time to determine how to face the unprecedented situation of pending federal cases against someone who had just been elected to the presidency.

Getting Monday's filings in a week ahead of schedule now raises the question of whether Smith will be able to beat the clock to officially close his office down and submit his final report to Attorney General Merrick Garland -- as is required of him per the DOJ's special counsel regulations — before Inauguration Day, which is Jan. 20.

The final report will have to go through a classification review by the intelligence community, a process that can sometimes take weeks before it is approved for any kind of public release.

MORE: Timeline: Special counsel's probe into Trump's efforts to overturn 2020 election

Garland has made clear in appearances before Congress and in public statements that he is committed to making public the final reports of all special counsels during his tenure, which to date has included reports by special counsel Robert Hur following his probe of President Joe Biden's handling of classified documents before assuming the presidency, and by special counsel John Durham following his probe of the 2016 Russia investigation.

Special counsel David Weiss is still continuing his investigation of FBI informant Alexander Smirnov, who pleaded not guilty to charges of lying about President Biden and his son Hunter Biden, and is set to take the case to trial in California next week. It's unclear whether Weiss will formally close his investigation down and submit a final report prior to Trump taking office.

Trump election case is tossed after special counsel Jack Smith requests dismissal citing 'categorical' DOJ policy originally appeared on abcnews.go.com