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Following President-elect Donald Trump’s landslide victory on Tuesday, the U.S. Department of Justice (DOJ) is dropping the cases it has levelled against Trump over the past four years, and a top Trump prosecutor is looking for a way out.

According to a Fox News report, “special counsel” Jack Smith will leave the DOJ prior to Trump’s inauguration on January 20, and the cases he has been unsuccessfully prosecuting against Trump will be dropped. The DOJ has reportedly explained Smith’s departure and the shelving of the cases by saying that a sitting U.S. president cannot be prosecuted.

In comments to The Washington Stand, Article III Project Founder and President Mike Davis explained that the cases prosecuted by Smith were intended to keep Trump from being re-elected. “It’s clear that Jack Smith was attempting to interfere with the election all along. That’s exactly why these cases are closing out mere hours after President Trump won re-election,” Davis said. He continued, “These institutions tried everything to block a Trump return to the White House, and they were embarrassed by the mandate delivered by the American people on Tuesday.”

A mere three days after Trump announced his 2024 presidential campaign, current U.S. Attorney General Merrick Garland appointed Smith to prosecute two cases against the 45th president: one centred on Trump’s alleged mishandling of classified documents after leaving the White House, and the other was focused on Trump’s claims of election fraud impacting the 2020 election. The former saw the FBI raid Trump’s Mar-a-Lago home in Florida but has since been struck down by a federal judge, who clarified that Smith’s position, that of “special counsel”, is unconstitutional. Smith initially appealed the ruling but will now have to abandon the appeal.

Presidential Immunity

The other case, which has attempted to portray Trump as responsible for the events of January 6, 2021, worked its way up to the U.S. Supreme Court earlier this year. In a landmark ruling, the court upheld the 45th president’s claim of presidential immunity, determining that the president is protected by “absolute” immunity when exercising his core constitutional responsibilities and is granted “presumptive” immunity when carrying out “official acts”. The Supreme Court returned Smith’s case to a lower court for review, clarifying that much of Smith’s initial indictment was protected by either “absolute” or “presumptive” presidential immunity.

“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Chief Justice John Roberts wrote at the time. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity,” he continued.

Smith subsequently filed a superseding indictment in August, leaving out allegations related to actions the Supreme Court deemed subject to “absolute” immunity and arguing that other actions fell outside the scope of Trump’s official acts. Ultimately, the superseding indictment contained the same four charges as the original: one count of conspiracy to obstruct an official proceeding, one count of obstruction of an attempt to obstruct an official proceeding, and one count of conspiracy against rights. Smith and U.S. District Court Judge Tanya Chutkan later unsealed a brief, just a month before the election, accusing Trump of a “private” “scheme” to illegally interfere in the certification of the 2020 election.

Lawfare

In a radio interview about two weeks before the election, Trump said without hesitation that he would fire Smith upon taking office. “I would fire him within two seconds,” the 45th (and soon-to-be 47th) president said. Numerous conservatives, including members of the Trump team, have accused the DOJ of political weaponisation in its targeting of Trump.

Chris Gacek, a lawyer and senior fellow for Regulatory Affairs at the Family Research Council, told TWS, “All these different government apparatus have been weaponised against Trump.” He continued, “It seems like now, anyone can be put in prison by the government anytime they want, because everyone’s probably run afoul of something. You can be dragged in front of some D.C. jury and what kind of justice are you going to get? Not much. And that’s what they did against Trump.”

He also warned that the second Trump administration will have to address the previous administration’s abuse of the U.S. justice system. “This is going to continue as long as there are no material consequences. I hope that Trump has realised that his sort of New York businessman approach, that was a failure. He’s got to clean up the whole swamp, and he’s going to get a lot of casualties — these people who handled his cases,” Gacek said. He added, “There are no guardrails on any of these people. Marxists don’t have any principles, they just want to destroy their enemies, destroy the culture.”

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Image courtesy of The Washington Stand. Image courtesy of Gage Skidmore/Wikimedia Commons.