'Crushing blow to justice': Ex-DOJ prosecutor laments sad fate of Jack Smith’s Trump cases

29 November 2024

Special counsel Jack Smith's two federal indictments against President-elect Donald Trump came to an end when he asked for the election interference case to be dismissed without prejudice and motioned to withdraw his appeal of Judge Aileen Cannon's dismissal of the classified documents case.

Smith cited the U.S. Department of Justice's longstanding policy against prosecuting a sitting president, and Judge Tanya Chutkan — assigned to the election case — granted Smith's request and dismissed the case without prejudice.

In an opinion column published by MSNBC on November 27, former federal prosecutor Glenn Kirschner describes the fate of Smith's Trump indictments as a "crushing blow to justice."

"These democracy-busting developments make clear that, at least for the four years a president is in office, he is above the law — the functional equivalent of a king," Kirschner laments. "How did we get here?"

The ex-DOJ prosecutor goes on to note that although the charges against Trump were quite serious in both of Smith's cases, the special counsel was "compelled to dismiss Trump's cases" because "the Justice Department's Office of Legal Counsel is of the opinion that a sitting president cannot be prosecuted."

"Is there any hope for accountability of Trump in the future?" Kirschner writes. "I fear the answer is not much. But there is one point of light amid the darkness."

The MSNBC legal analyst continues, "There are two ways for a judge to dismiss a criminal case: 'with prejudice' or 'without prejudice.' With prejudice means that a case can never be re-brought and prosecuted in the future. Without prejudice means the case can be re-indicted and prosecuted in the future. Smith asked Chutkan to dismiss the case 'without prejudice,' and she did so."

Trump has faced four criminal indictments, two federal and two in individual states — including Fulton County District Attorney Fani Willis' election interference case in Georgia and Manhattan District Attorney Alvin Bragg Jr.'s hush money/falsified business records case in New York State. The latter is the only one of the four that went to trial, and Trump was convicted on 34 felony counts he has yet to be sentenced for.

But Kirschner is doubtful that there will be any legal accountability for Trump.

"Assuming Trump also escapes criminal responsibility for the 34 felony guilty verdicts delivered by a New York jury for crimes he committed before he was elected the first time around," Kirschner argues, "that will mean Trump would avoid accountability for crimes he committed before, during and after serving as president. Are we still inclined to recite the hollow mantra that, in America, no man is above the law?"

Glenn Kirschner's full MSNBC opinion column is available at this link.

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