Special counsel Jack Smith left the door open for President-elect Donald Trump's federal criminal cases to be revived while dropping them ahead of Trump's return to the White House.
On Monday, Smith filed a motion to drop four felony counts against Trump for attempting to overturn the 2020 presidential election and his alleged role in the January 6, 2021, attack on the U.S. Capitol. He also dropped an appeal to Trump-appointed Judge Aileen Cannon's dismissal of the president-elect's classified documents case.
Smith wrote that he "stands fully behind" the election subversion charges against Trump despite moving to dismiss the case "without prejudice," a legal term that means charges could at least theoretically be filed again after Trump's term ends in 2029. The documents case was previously dismissed without prejudice.
"The Constitution requires that this case be dismissed before the defendant is inaugurated," wrote Smith. "And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice."
Newsweek reached out to Trump's office via email on Monday for comment.
Legal analyst Barbara McQuade, a former federal prosecutor, noted on Monday in a post on X, formerly Twitter, that the case could return once Trump's second and final term expires in 2029. However, "there may be no appetite" at that point.
Harry Litman, also a legal analyst and a former federal prosecutor, wrote on X that Smith's move is a "really interesting gambit" because the incoming Trump-controlled Department of Justice (DOJ) may not be able to dismiss the case with prejudice since after it was already dismissed.
In the documents case, Smith dropped his appeal of the case against the president-elect on Monday but left the appeal intact for charges against his co-defendants, Trump valet Walt Nauta and Mar-a-Lago property manager Carlos de Oliveira.
However, charges against the co-defendants likely will not be pursued when Trump returns to office, as his nominee for U.S. attorney general, former Florida Attorney General Pam Bondi, will control the DOJ. Smith is also expected to resign as special counsel before Trump takes office.
Trump did not mention the possibility of the cases being revived while celebrating Smith's moves on Monday in a pair of posts to Truth Social. The president-elect asserted that he had triumphed over Democrats' "political hijacking" of the DOJ.
"These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought," Trump wrote. "Over $100 Million Dollars of Taxpayer Dollars has been wasted in the Democrat Party's fight against their Political Opponent, ME."
"It was a political hijacking, and a low point in the History of our Country that such a thing could have happened, and yet, I persevered, against all odds, and WON," he added. "MAKE AMERICA GREAT AGAIN!"
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