Former U.S. Attorney Barbara McQuade says special prosecutor Jack Smith left the door open for future prosecution of President Donald Trump on his way out.
McQuade said Smith deftly dismissed his own brewing case against Trump’s election interference investigation “without prejudice,” meaning it can be brought again by a new Justice Department in 2029 when Trump leaves office.
Critics say Trump’s prosecution for election interference creeped along under overly cautious former U.S. Attorney Merrick Garland, giving Trump the opportunity to win election before Smith could complete his case and present it to a grand jury. After Trump’s four years are up, his case would technically be beyond the statute of limitations. However, McQuade said Trump’s four years as president could mark a save point for the case, and his departure could restart the timer on that deadline.
“There is an argument that the statute is tolled during a period when charges cannot be brought. And since it is the position of the Justice Department, and some believe, required by the Constitution, that a sitting president cannot be charged, there's an argument that these four years should be tolled in the statute of limitations allowing that case to be resuscitated once Donald Trump leaves office," she said.
“So in theory, if Trump leaves office, then another special counsel, or if Jack Smith was brought back, this could get restarted,” asked MS NOW host Katy Tur. “Would you expect that to go to the Supreme Court?”
McQuade agreed, but she added that Smith acted to insulate much of the case for Supreme court review.
“I mean, one of the things that Smith did, of course, was to supersede his indictment and to remove from that case any conduct that he believed was covered by the Supreme Court's immunity decision in July of 2024. Not everything he did there was covered by immunity — only that which was within the scope of his constitutional duties. Many of the allegations were charged against Donald Trump in his capacity as a candidate, not as the sitting president, who really doesn't have a formal role to play in elections.”
“It was never adjudicated, so it could be resuscitated in January of 2029,” McQuade said, while adding a warning that any attempts by the Trump administration to burn evidence in his oen case while he’s in power could bring down its own prosecution and penalties.
“Destruction of evidence can be treated as obstruction of justice,” McQuade said. “ … If somebody were to destroy them for the purpose of ending any sort of investigation to come, I would imagine there could be potential obstruction of justice charges for those people.”
Meanwhile the destruction could be futile because witness testimpny can be reclaimed with follow-up interviews, and incriminating text messages, phone records and bank records can be replicated by going back to the original source.
Watch McQuade's segment below:
- YouTube youtu.be
