Submitted by Jack Smith, Special Counsel, U.S. Dept. of Justice
“…But for Mr. Trump’s election and imminent return to
the Presidency, the Office assessed that the admissible evidence
was sufficient to obtain and sustain a conviction at trial.”
Washington, D.C. Former President Donald J. Trump was a subject of two separate criminal investigations by the Department of Justice. The first was an investigation into whether any person violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election. The second investigation focused on the possession of highly classified documents at Mr. Trump’s Mar-a-Lago social club following his presidency.
On November 15, 2022, Mr. Trump declared his candidacy to unseat President Joseph R. Biden, Jr., who had previously stated his intention to stand for reelection. Mr. Trump’s announcement created a highly unusual situation, in which the Department, an agency within the Executive Branch headed by President Biden, was conducting criminal investigations regarding his newly declared challenger.
Based on a longstanding recognition that “in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution,” you, as the Attorney General, promptly did so here to “underscore the Department’s commitment to both independence and accountability in particularly sensitive matters.” Attorney General Merrick B. Garland, Remarks on the Appointment of a Special Counsel, Washington, D.C. (Nov. 18, 2022).
On the day that I was appointed, I pledged that I would exercise independent judgment, follow the best traditions of the Department of Justice, and conduct my work expeditiously and thoroughly to reach whatever outcome the facts and law dictated. With the aid of an outstanding team, that is what I did. Upon my appointment, I organized a staff of experienced career federal prosecutors, and together we conducted the investigations and subsequent prosecutions under our mandate, consistent with the Department’s traditions of integrity and nonpartisanship that have guided all of us throughout our careers.
On remand from the Supreme Court’s decision in Trump, the district court set a litigation schedule whereby the parties would submit briefs regarding whether any material in the superseding indictment was subject to presidential immunity. ECF No. 233. The parties were in the middle of that process when the results of the presidential election made clear that Mr. Trump would be inaugurated as President of the United States on January 20, 2025.
As described above, it has long been the Department’s interpretation that the Constitution forbids the federal indictment and prosecution of a sitting President, but the election results raised for the first time the question of the lawful course when a private citizen who has already been indicted is then elected President. The Department detem1ined that the case must be dismissed without prejudice before Mr. Trump takes office, and the Office therefore moved to dismiss the indictment on November 25, 2024. See ECF No. 281. The district court granted the motion the same day.
The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not tum on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind. Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.
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