In a column on MSNBC's website Thursday, former U.S. attorney Barbara McQuade suggests that far from “obeying an authoritarian in advance,” special counsel Jack Smith's request to pre-emptively shut down his cases against President-elect Donald Trump was a shrewd move that could ensure their survival in the long run.
According to McQuade, nixing the cases "without prejudice" means that they can be filed against Trump when he eventually leaves office, stops Trump's incoming attorney general from permanently blocking them and lets Smith “explain his reasons for dismissing the case, rather than allowing Trump’s future AG to mischaracterize them."
Smith was in in the middle of several Justice Department cases against Trump charging him with election fraud and illegally retaining classified documents after leaving office. Trump has held a grudge against Smith and vowed to fire him upon entering office for his second term on Jan. 20. When Smith filed the motions to dismiss the cases, he cited the fact that the Justice Department’s Office of Legal Counsel, whose opinions are “binding” on the special counsel, asserts that a sitting president is constitutionally immune to indictment and criminal prosecution and must be allowed to carry out the duties of the office.
But, McQuade noted, Smith noted that this relief from criminal prosecution was "temporary" and only applies during the president's term in office.
"It may be that a future attorney general, whether serving in a Democratic or Republican administration, will lack the appetite to resuscitate the cases against Trump in 2029," McQuade concluded. "But Smith has done all he can to preserve that possibility."
