What’s next after Jack Smith’s move to dismiss Trump’s criminal charges?

For many of us, it feels like a devastating blow to the judiciary when Special Counsel Jack Smith moved on Monday to dismiss both federal criminal cases against President-elect Donald Trump – the 2020 Washington, DC election subversion case and the Secret Documents/Obstruction of Justice case -/Espionage case in Florida. Judge Tanya Chutkan immediately dismissed the DC case, and the dismissal of the documents case will almost certainly follow soon. These democracy-destroying developments make it clear that, at least during the four years that a president is in office Is above the law – the functional equivalent of a king.

How did we get here?

First, let’s look at the DC case. A four-part indictment charged Trump with crimes he allegedly committed while serving as president, including a conspiracy to deprive the American people of their right to vote by unlawfully attempting to take over the office of president, contrary to the express wishes of the president President The American people when they elected Joe Biden as their president.

Smith presented evidence to a grand jury in Washington, including scores of Republican witnesses, and the grand jury concluded there was enough evidence to indict Trump. As that case went to trial, Trump’s lawyers filed a motion arguing that presidents enjoy absolute immunity from prosecution for crimes they commit while in office. Despite there being no law, no appeals 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 presidential immunity seemingly out of thin air, essentially giving the potential power of lawlessness about American presidents. Especially the Supreme Court not conclude that Trump committed no crimes. Instead, the case was sent back to Judge Chutkan to decide which of Trump’s crimes should enjoy immunity from prosecution and which should not.

While that litigation was ongoing, Trump won the 2024 election. However, because the Justice Department’s Office of Legal Counsel believes that a sitting president cannot be prosecuted, Smith was forced to dismiss Trump’s cases.

Where does this lead us? Recall that the allegations in the Trump DC indictment cover five areas of alleged criminality: the baseless, bad faith legal challenges to the 2020 election results by Trump’s lawyers; Trump’s pressure campaign on state elected officials (recall Trump’s recorded request to “find 11,780 votes”); the fake election manifesto; Trump pressures Vice President Mike Pence to refuse to certify Biden’s election victory; and when all else failed, a call for his supporters on Jan. 6 to march on the U.S. Capitol, “fight like hell” or “you won’t have a country anymore” and “stop the steal,” a non- thinly veiled order to stop the certification of the election results.

Is there hope for future Trump accountability? I’m afraid the answer is… not much.

But there is a point of light in the midst of the darkness. There are two ways for a judge to dismiss a criminal case: “without prejudice” or “without prejudice.” Prejudice means that a case can never be revisited and prosecuted in the future. The case is called unscathed may be charged and prosecuted again in the future. Smith asked Chutkan to dismiss the case “without prejudice,” and she did so.

But the justice gods give and the justice gods take away. There are several ways Trump and his new attorney general can eliminate the possibility of a retrial of his criminal cases in the future. First, Trump could direct his attorney general to file a motion asking Chutkan to reconsider her previous firing and convert it to a dismissal with prejudice. Fortunately, there are some substantive and procedural hurdles that would make such an application an arduous 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 also with a strict ban investigate E.g., a president’s motive or intent in exercising that power, Trump could simply pardon himself for all crimes he committed during his life, a cradle-to-grave self-pardon. That’s the kind of quasi-royal power the Supreme Court has already endorsed.

Third, if Trump chooses not to go the self-pardon route, he could simply negotiate a quid pro quo deal with Vice President-elect JD Vance. He could resign at some point during his presidency and go to Mar-a-Lago to play golf and have Vance pardon him for any crimes he may have committed, just as President Gerald Ford pardoned Richard Nixon.

And don’t even get me started on how the statute of limitations states that someone must be prosecuted within five years of the date of the crime or the case will be barred. That means another potential obstacle to Trump’s prosecution, assuming he serves his entire term.

That is assuming Trump also evades criminal responsibility for the 34 guilty verdicts returned by a New York jury for the crimes he committed before If elected for the first time, it would mean Trump shirking responsibility for crimes he committed before, during and after his term as president.

Are we still inclined to recite the hollow mantra that no man is above the law in America?