“Without prejudice”
As many of you already know, at the behest of special counsel Jack Smith, Judge Tanya Chutkan dismissed the case alleging that convicted felon Donald Trump unlawfully sought to overturn the 2020 election. A similar fate (as I write this) awaits Trump’s Florida classified documents theft case.
Judge Chutkan dismissed the insurrection case “without prejudice,” meaning the court is not declaring that the case has no merit, but that it is being dismissed for other reasons. In this case, the reason stems from a preternaturally stupid memo filed by the Office of Legal Counsel (OLC) back in the Nixon era. The memo declared that it is not the policy of the Department of Justice to prosecute a sitting president.
So the question is, did Trump just get away with his crimes? The short answer is, probably. However, there is yet some hope.
An argument could be made that, because the OLC memo prevents prosecution, the statute of limitations (SOL) could be considered paused for the duration of the term of Trump’s presidency. Smith says as much in his six page filing for dismissal of the charges: “Immunity from prosecution for a sitting president would not preclude such prosecution once the president’s term is over or he is otherwise removed from office by resignation or impeachment.”
While that is a fairly compelling argument, it’s up to the discretion of whoever the Attorney General is in 2029. In other words it’s a distant longshot. For one thing, if Trump is still alive by then and charges are refiled, in a move of extreme irony and hypocrisy, his attorneys could state that the OLC memo has no force of law and therefore the statute of limitations, which is five years, was not paused.
In other words, Trump’s lawyers could allege, if the justice department wanted to bring charges, they should have done so while Trump was president! Naturally, if Smith (or anyone in the DOJ) had stayed the course and pursued the charges into Trump’s coming term of office, Trump’s attorneys would raise a shrill cry about the sanctity of the OLC memo! Playing both sides of every question is and always has been a Republican speciality.
But the question remains: why did Jack Smith move to have the cases dismissed? Why didn’t he simply leave the cases in play and let Trump, through his lawyers, corruptly dismiss them? That way the SOL would have been paused by definition. The answer, of course, is that they might have been wise to that tactic and allowed the case to die of neglect. In which case the SOL would have run out and Trump would not be prosecutable under the law.
Meanwhile, in Georgia, where Trump also faces election subversion charges, an appeals court is considering whether to overturn a previous ruling allowing Fulton County District Attorney Fani Willis to stay on the case despite a relationship she had with a prosecutor she hired. If the case proceeds, it is not touchable by the OLC memo nor can Trump’s incoming DOJ interfere with it. So it remains our only hope.
Frankly, I am understandably cynical. I have seen Trump get away with murder his whole goddamned life and looks like he’s going to do it again. I’ll bet that, now that the convicted felon is president-elect, all of his criminal woes will simply vanish.
But whatever happens will happen. And we will have to wait and see. I am far more hopeful about 2026. By then I hope that Trump will have so completely alienated the idiots who voted for him that a new blue wave of a Democratic Congress and a Democratic Senate will impeach and prosecute him. We will have to see. Whatever the case, brothers and sisters, take care of yourselves, and if you can, take care of someone else too.
Robert Harrington is an American expat living in Britain. He is a portrait painter.