Special counsel Jack Smith seeks to end bid to revive documents case against Trump

Washington —  Special counsel Jack Smith on Monday sought to end his bid to revive the case against President-elect Donald Trump arising from his alleged mishandling of sensitive government documents, which would bring to a close the historic and unprecedented case against the nation’s 45th and 47th president.

In a filing with the U.S. Court of Appeals for the 11th Circuit, Smith cited Trump’s recent victory over Vice President Kamala Harris in the November presidential election and referred to longstanding Justice Department policy that forbids the prosecution of a sitting president.

The district court judge presiding over Trump’s case, U.S. District Judge Aileen Cannon, had ruled earlier this year that the charges should be dismissed because Smith was unlawfully appointed. The special counsel appealed the decision, but has now asked the 11th Circuit to dismiss his appeal.

In his brief filing, Smith cited a separate request to dismiss his other case involving Trump, which involves an alleged scheme to overturn the 2020 election. The special counsel said in that filing submitted to a federal judge in Washington, D.C., that after consultation with the Justice Department’s Office of Legal Counsel, “the department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated.”

“The American people re-elected President Trump with an overwhelming mandate to make America great again. Today’s decision by the DOJ ends the unconstitutional federal cases against President Trump and is a major victory for the rule of law,” Steven Cheung, Trump’s spokesman, said in a statement. “The American people and President Trump want an immediate end to the political weaponization of our justice system and we look forward to uniting our country.” 

The federal judge overseeing the 2020 election case agreed to drop the charges against Trump just hours after Smith filed his request, marking the culmination of the monthslong prosecution against the president-elect. In the documents case, dismissing the appeal as to Trump would leave in place the lower court’s order tossing out the charges against him. The appeal will continue as to Trump’s two co-defendants, Walt Nauta and Carlos de Oliveira, because unlike the president-elect, “no principle of temporary immunity applies to them,” Smith wrote.

“The special counsel’s decision to proceed in this case even after dismissing it against President Trump is an unsurprising tribute to the poor judgment that led to the indictment against Mr. De Oliveira in the first place,” John Irving, de Oliveira’s lawyer, said in a statement. “Just because you can doesn’t mean you should. If they prefer a slow acquittal, that’s fine with us.”

A lawyer for Nauta declined to comment.

Trump became the first former president to face federal charges when a grand jury returned an indictment against him in June 2023. The prosecution came months after FBI agents conducted a court-authorized search of Trump’s South Florida property, Mar-a-Lago, in August 2022 and recovered more than 100 documents marked classified that he kept after his first term ended in January 2021.

Following the search, Trump mounted a separate legal battle that brought the appointment of an independent arbiter to sift through the material seized by the FBI, though the 11th Circuit ordered an end to that review in late 2022.

Smith was appointed by Attorney General Merrick Garland in November of that year to take over the federal investigation into Trump’s handling of sensitive government records and pursued charges against the president-elect for unlawfully retaining national defense information and attempting to obstruct the Justice Department’s probe. Trump was charged alongside two employees, Nauta, an aide, and de Oliveira, the property manager as Mar-a-Lago.

Trump, Nauta and de Oliveira pleaded not guilty to all charges. The president-elect claimed his prosecution was a politically motivated attempt to harm his candidacy in the race for a second term.

Prosecutors used court filings to reveal information about how Trump allegedly stored records containing the nation’s secrets at his resort, as well as how he, with his co-defendants, allegedly engaged in a scheme to deceive federal investigators and stymie their probe.

They included photos showing boxes of material stacked on the stage in Mar-a-Lago’s ballroom and in a bathroom on the property. Other images taken by the FBI during its August 2022 search show boxes of records in a storage room and in Trump’s office, some of which prosecutors said contained highly sensitive information alongside personal keepsakes and other items from his presidency.

Cannon initially set a trial date for May 20, 2024, but she postponed the proceedings weeks before they were set to begin. 

The president-elect and his lawyers attempted to have the case against him dismissed on a variety of grounds, claiming he was selectively prosecuted, he was shielded from federal charges by presidential immunity and Smith was appointed in violation of the Constitution.

Trump succeeded in persuading Cannon that the special counsel’s appointment and funding for his office were unlawful, and she ordered the case to be dismissed in July.

But Smith appealed the decision to the 11th Circuit. Both he and Trump’s lawyers submitted filings with the court presenting their views on Cannon’s ruling, though the court had not yet set a date for arguments. It was expected that an eventual decision from the 11th Circuit would wind up before the Supreme Court.

The documents case was one of two that Smith brought against Trump. In Washington, D.C., he faced charges related to an alleged attempt to subvert the transfer of power after the 2020 presidential election. The president-elect pleaded not guilty to the four counts he faced there, and the dispute landed before the Supreme Court as Trump argued presidential immunity shielded him from prosecution.

He was also charged by local prosecutors in separate cases in Fulton County, Georgia, and New York City. The New York case stemmed from a hush-money payment made to adult film actor Stormy Daniels after the 2016 election, and a jury found Trump guilty of 34 felonies in May, making him the first former president convicted of a crime.

He was set to be sentenced last month in New York, but it was delayed.

The Fulton County case involved an alleged plot by Trump to overturn the results of the 2020 election in Georgia. He pleaded not guilty to charges in the sprawling racketeering case brought by District Attorney Fani Willis. Proceedings had been halted, though, while a state appeals court considered whether Willis should be disqualified from the case. It’s unclear how Trump’s victory will affect his prosecution in Fulton County.

Trump’s bid for a second term loomed over his prosecutions, as it was widely expected his federal cases would be dropped if he succeeded in winning the White House.

Now, Smith has sought to bring an end to both of the historic prosecutions of the former and next president.

Once both cases are settled, Smith is likely to file a final report with the attorney general, as is required by special counsel regulations, and is expected to resign from his post before Trump is sworn into office on Jan. 20, two sources familiar with Smith’s plans previously told CBS News. Garland has pledged to publicly release all special counsel reports completed during his tenure — a commitment he has so far upheld — and he is likely to do so for Smith’s report, too. Prior special counsels have testified before Congress after submitting their reports, and Smith could as well.

Should the disclosure of Smith’s findings stall and be delayed into the Trump administration, the odds of its release become increasingly slim as the president-elect has said he intends to nominate many of his top defense attorneys to leadership roles within the Justice Department.

Todd Blanche and Emil Bove, who defended Trump in the two federal cases and in New York, are set to serve as deputy attorney general and principal associate deputy attorney general respectively, two powerful posts within the Justice Department. Trump has said he will nominate former Florida Attorney General Pam Bondi for the top job as attorney general. 

contributed to this report.