Special Counsel Jack Smith has asked the judge overseeing Donald Trump’s criminal January 6 case to halt further proceedings after his astounding Election Night victory.
He is asking for a one-month delay for his team to ‘assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy.’
The move to stall comes after Smith and his team tried to keep up a relentless pace in previous filings over the course of the year, and reflects the stunning new realities of the case.
Smith makes a reference to existing Justice Department policy that no sitting president can be prosecuted. Although Trump remains president-elect, the January 6 case would extend well into his presidency.
Trump is expected to be formally certified as President-elect on January 6, 2025, and sworn into office on January 20.
He was indicted in the bombshell case in August 2023 on felony charges of seeking to overturn the election in the run-up to January 6.
The two federal criminal cases against Donald Trump are likely to be wound down before he gets into the White House , according to reports hours after his crushing election victory over Kamala Harris
Legal experts are also predicting the classified documents case against Trump – he is accused of taking national security documents to Mar-a-Lago after he left the White House and obstructing justice – will also wind down.
Trump-appointed Judge Aileen Cannon already dismissed the case, and prosecutors are currently appealing it to the 11th Circuit Court of Appeals.
It’s an enormous blow for Smith who ramped up the cases in the final months of the campaign and has spent almost three years and more than $35million in taxpayer funds trying to bring the 78-year-old former president to trial.
‘As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025,’ Smith wrote in a new filing, which came a day after President Joe Biden promised a ‘peaceful and orderly transition,’ and added: ‘You can’t love your country only when you win.’
Trump has publicly railed against the career prosecutor, calling him ‘deranged’ and saying he should be thrown out of the country.
House Republicans, who stand a good chance to maintain a razor-thin majority in the chamber, are ramping up their probe of the House January 6 committee that operated under Democratic control.
House Judiciary Chairman Jim Jordan of Ohio and GOP Rep. Barry Loudermilk of Georgia wrote Smith telling him to preserve records in connection with their probe.
Trump still faces sentencing in the New York hush money trial next month and the election interference case in Georgia headed by District Attorney Fani Wills has been beset by a slew of problems.
But those cases, two, could easily fall apart now that Trump has become the first president elected after being convicted of a crime – on 34 counts of falsifying financial documents in the Stormy Daniels trial.
Judge Juan Merchan now must decide whether to yield to ‘immunity’ arguments raised by Trump’s defense in light of a Supreme Court ruling, and what to do at sentencing, currently scheduled or November 26.
Trump faces four charges in federal court in Washington, D.C. accusing him of spreading false claims of election fraud to try to block the collection and certification of votes following the 2020 election, which Trump lost to Democrat Joe Biden.
Judge Tanya Chutkan is still sorting through the Supreme Court’s union
He asked federal courts to grant him presidential immunity, which delayed the DC case for months, although the federal judge overseeing the case is still deciding how much Trump is actually covered by presidential immunity for his efforts to overturn his 2020 election loss.
Smith filed a new superseding indictment in the wake of the decision by the 6-3 decision by the conservative majority.
Since Trump will only be sworn into office on Inauguration Day on January 20, prosecutors still technically have weeks to prosecute him if they wanted to.
But just like earlier efforts, they would be vulnerable to challenges and appeal.
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‘The ball’s in DOJ’s court. I think in the next 48 to 72 hours we’re going to hear something,’ said a source close to Trump’s defense. ‘The DOJ does not want to be caught up in a situation where they’re litigating something that is pointless.’
Smith had also charged Trump with unlawfully holding onto classified documents at his Mar-a-Lago estate in Florida after his first term ended in 2021 and obstructing efforts by the U.S. government to retrieve the records.
Florida-based U.S. District Judge Aileen Cannon, who was nominated to the bench by Trump, dismissed all charges in July after finding that Smith was improperly appointed to the role and did not have the authority to bring the case.
The ruling brought an abrupt halt to the case, ensuring there would be no trial before the presidential election.
Smith’s team is appealing the ruling, but Trump’s vow to fire Smith ‘within two seconds’ upon taking office likely signals the end of the case.
Former President Donald Trump was facing 88 criminal charges at the start of the year
But even if it extended to the time Trump took office, he could shut it down.
With Republicans seizing control of the Senate, Trump is not expected to have difficulty confirming his cabinet officials, with Sen. Marco Rubio (R-Fla.) already pointing to his mandate and saying he deserves to bring in his own people.
The moves by DOJ come after a year of extraordinary legal developments, set in motion in part by the DOJ’s decision to take its time before bringing charges.
Then, Smith undertook a hectic effort to advance cases on multiple fronts all while election deadlines loomed.
Trump made political hay out of the mutliple prosecutions, arguing he was a victim of ‘lawfare’ and ‘lunatic’ prosecutors.
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A key factor in the situation is a decades-old memo by the DOJ’s Office of Legal Counsel.
‘The Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions,’ it said.
It doesn’t mention the presidential transition period, although Trump’s team argues that the Presidential Transition Act enumerates presidential authorities that would bring in the same protections.
Further strengthening Trump’s posture is the Supreme Court’s decision in the January 6th case that established presidential ‘immunity’ from prosecution while in office, with lower courts still sorting through what conduct is and is not protected.