Jack Smith putting Trump's election interference case on ice does not mean it's dead — yet
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- On Friday, Smith successfully sought to freeze deadlines in Trump's election interference case.
- The special counsel cited the "unprecedented circumstance" of Trump's reelection.
- Justice Department policy says a sitting president cannot be prosecuted while in office.
A federal judge on Friday granted special counsel Jack Smith's request to vacate all pending deadlines for President-elect Donald Trump's 2020 election interference case.
Wiping the calendar clean does not kill the case outright. It does feel like a white flag has been raised, legal experts told Business Insider.
"I do not see a path for these cases surviving," former federal prosecutor Ephraim Savitt said.
As a defense lawyer, Savitt faced Smith at two Brooklyn death penalty trials back when the special counsel was an assistant US attorney.
"I know Jack very well. He's a very smart lawyer and a dogged prosecutor. If anyone could keep these cases alive, it's him," he told BI. "But he's basically out of a job already. And a Trump DOJ will move without opposition to have the cases dismissed," he added.
Smith asked for the deadlines to be vacated in a court filing Friday morning. He said he needed until December 2 "to determine the appropriate course going forward consistent with Department of Justice policies."
How will Smith use this time?
He could close up shop quietly, running out the clock until the January 20 inauguration, after which Trump has promised to fire him, some legal experts said.
In other words, Smith would be "bowing out gracefully," rather than wasting judicial resources, as veteran Manhattan financial crimes prosecutor and attorney John Moscow put it.
"Smith is an extremely professional and competent prosecutor," Moscow said. "He knows Donald Trump has been elected president and that he will be in a position to appoint a new attorney general who will be in a position to dismiss all pending federal cases."
On the other hand, Smith and his staff may keep busy, using the next 11 weeks to prepare a final statement.
"He might just move to dismiss the cases himself, in December," and then "write a long report with all the evidence" for his boss, Attorney General Merrick Garland, said Michel Paradis, a professor of constitutional law at Columbia University Law School.
Smith could alternately continue to preserve his prosecutions against near-impossible odds until the moment Trump takes the oath of office.
He could keep litigating the Mar-a-Lago documents case, in which Trump is charged with obstructing justice and willfully retaining classified and top-secret government documents. Smith is in the midst of appealing US District Judge Aileen Cannon's dismissal of the case from July.
As for the election interference case, Paradis said Smith has one Hail Mary move.
He could ask the judge to stay the case on the argument that the defendant is temporarily unavailable. A long-standing justice department policy bars the prosecution of sitting presidents.
Such a stay would be granted by US District Judge Tanya Chutkan, and possibly upheld by the DC Court of Appeals, some experts said.
It would stop the speedy trial and statute of limitations clocks, keeping the election-interference case in suspended animation, but alive — until Trump and his new DOJ appeal the stay and seek dismissal from the US Supreme Court.
"Push comes to shove, I think this Supreme Court will let the DOJ dismiss the case," Paradis said. "But if he wanted to take a go at keeping the case alive for when Trump is out of office, that is probably his only viable path for doing so."
In asking to vacate the insurrection-case deadlines, Smith said Trump is expected to be certified as president on January 6 and inaugurated on January 20.
"The Government respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy," the filing read.
"The American people have re-elected President Trump with an overwhelming mandate to Make America Great Again," Trump spokesman Steven Cheung said in a statement to Business Insider. "It is now abundantly clear that Americans want an immediate end to the weaponization of our justice system, so we can, as President Trump said in his historic victory speech, unify our country and work together for the betterment of our nation."
The justice department declined to comment for this story.
The motion said Smith and his team "will file a status report or otherwise inform the Court of the result of its deliberations" by December 2.
"The Government has consulted with defense counsel, who do not object to this request," the filing read.
This story was updated to include expert comments.