Despite dismissal, legal scholar says “scathing” Trump evidence could still come out

With the election interference charges against President-elect Donald Trump dropped and special counsel Jack Smith moving to have the classified documents case against him dismissed as well, the prosecutions of the former president are coming to an anticlimactic end. They have, however, left a lasting impact on the American legal landscape.

Smith on Monday moved to have both federal cases against Trump dismissed without prejudice — a signal that Smith still believes in the arguments put forth in the case. Judge Tanya Chtuckan, overseeing the election interference case in Washington D.C. quickly agreed to Smith’s request. Smith previously appealed Judge Aileen Cannon’s dismissal of the classified documents case but has since asked the court to drop the matter.

Smith’s decision was based on the Justice Department policy dating back to the Nixon administration, which states that the department cannot charge a sitting president with a crime, meaning that the federal cases against Trump have been expected to end since he won the 2024 election. Smith’s choice to file for dismissal without prejudice means prosecutors working for a future administration could theoretically reopen the case against Trump.

“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’s office wrote in the filing in Washington D.C. “The Government’s position on the merits of the defendant’s prosecution has not changed. But the circumstances have.”

Saikrishna Prakash, a professor at the University of Virginia School of Law, told Salon that the filings were “entirely expected” and reaffirmed the Justice Department policy, saying that “the precedent that’s set is that the DOJ has now acted on its view that a sitting president can’t be prosecuted.”

“Different people will draw different conclusions about the whole prosecution. Trump and his allies will draw the conclusion that this should never have been brought. Other people might draw the conclusion that Merrick Garland should’ve appointed a prosecutor earlier,” Prakash said. “I don’t know what to make of the two critiques, they aren’t both obviously wrong. I’m not sure they can both be right.”

Bennett Gershman, a law professor at Pace University, disagreed, saying that because the decision is based on Justice Department policy and not law, the move to dismiss “sets absolutely no precedent for future prosecutions by special counsels.”

“Additionally, given the irregular, unusual, and unprecedented conduct of Trump and his team in spurning traditional rules for presidential transitions, there is nothing about dismissing the charges that can even remotely be seen as setting any precedent for the future,” Gershman said.

Gershman went on to note that, despite Trump not being tried for his alleged crimes, his co-defendants still could be and that “proof of Trump’s criminal conduct would likely be described in detail in that prosecution.” Smith will also be filing a report on his investigation to the Department of Justice before Trump takes office, which Gershman expects to be “scathing” even though it may never be released to the public.

“Finally, it is amusing to me to note how Trump has viciously attacked the Justice Department and every prosecutor who has investigated and charged him for ‘weaponizing’ the criminal justice system against him and his cronies,” Gershman said. “Now, with the shoe on the other foot, so to speak, it is Trump and his cronies who are making plans to weaponize the Justice Department against Trump’s enemies.”

Ty Cobb, a former member of the Trump White House’s legal team, told Salon the biggest legacy of the cases against Trump will likely be the Supreme Court’s ruling on presidential immunity.

“The January 6 case in DC has validated the precedent that a former president is subject to indictment and prosecution,” Cobb said. 

He said that while the immunity decision has drawn significant criticism, the Supreme Court’s opinion, that a president can be prosecuted for everything besides “official acts” and that these acts are determined to be official or not based on a “case by case fact-based assessment” will be significant long after Trump leaves the stage. In Cobb’s opinion, the Supreme Court drew the line “aggressively” but still largely in line with how the issue is viewed at the Department of Justice.

“There is no individual in history who has stressed the Constitution in regards to the rule of law more than Trump has,” Cobb said. “We actually know a lot more about the Constitution because of Trump. Not everything we know is glorious. On the other hand, he has forced the courts to define the outer limits in terms of the three branches of government.