Opinion - Jack Smith must not drop the government’s charges against Donald Trump — here’s why
A scant 24 hours after Donald Trump was declared the winner of the 2024 presidential election, the Department of Justice (DOJ) and special counsel Jack Smith were already discussing how to withdraw the two federal indictments and ongoing criminal prosecutions against Donald Trump, according to multiple news outlets. Soon thereafter, prosecutors moved to suspend proceedings in the January 6th matter — a request that was quickly granted.
While the DOJ has made no announcement on precisely why or how it wishes to proceed, the move by the special counsel is generally thought to be mandated by the department’s longstanding policy, as captured in several Office of Legal Counsel (OLC) memos, that says that a sitting president cannot be indicted.
The department may be strategizing around how best to preserve the cases for revival after Trump leaves the White House; perhaps Smith believes invoking the DOJ policy will prove useful toward that goal, as it may provide a basis for requesting a stay, rather than an outright dismissal, of the proceedings. Even so, withdrawing from the cases at this juncture would appear to be a grave mistake, in at least two respects.
First, even if one accepts the DOJ memos, they are arguably inapplicable to the present moment. And second, the memos reflect a seriously flawed policy for a democratic society supposedly governed by the rule of law. Rather than re-affirm them, the memos should be withdrawn. At a minimum, it should be made clear that the policy they advance is not a constitutional requirement.
As co-author Richard Painter and I explain in an article we recently published in the University of Southern California Law Review, the case of a previously indicted individual who becomes president in the middle of a criminal proceeding is not at all the same as that of the president who is indicted in the middle of his term.
In the case of a previously indicted individual charged with a federal crime before he became president, there is no concern that the indictment was brought to interfere with the work of the administration. In this case the reverse is true: the more appropriate worry is that a previously indicted individual is using the presidency to shield himself from prosecution for his alleged crimes. The DOJ policy is particularly problematic if it suppresses any ongoing, pending legal matters with respect to a candidate when that individual wins the presidency.
With regard to the policy overall, it is high time for the department to withdraw the memos, which stand in significant tension with the 2020 decision of Trump v. Vance and other Supreme Court precedent. Worse, the stature of the policy has been badly misunderstood, as it is often said to be constitutionally mandated. Notably, the OLC memos cannot render the policy constitutionally binding, since such opinions are only advisory to the department. They are not laws and they do not impose legal obligations on anyone to adhere to them, least of all the department, which can easily reverse course.
Even if one accepts the wisdom of the policy, however, there are several other concerns with applying it to the instant case.
It is widely anticipated that, were Jack Smith to continue to prosecute the two federal cases until Inauguration Day on Jan. 20, 2025, Donald Trump would fire, or ask his new attorney general to fire, Smith immediately upon taking office. However, as Painter and I have argued elsewhere, this may arguably constitute obstruction of justice under federal law, despite broad presidential power to remove members of the executive branch under the “unitary executive” conception of the president’s Article II authority. And this would be the case even if one takes the view that removal is always an official act and hence is not punishable under the Supreme Court’s immunity decision.
If the sole purpose of the removal of a federal employee is to immunize the president against investigations into his own wrongdoing, that is a misuse of presidential authority, and one that is unrelated to the protections that the presidency is meant to afford. Under those circumstances, the removal should be deemed a personal capacity act to which immunity does not apply. While the Supreme Court has largely failed to define what counts as an official capacity act, one might suppose that avoiding accountability for the commission of a personal capacity crime is the quintessential personal capacity act.
If the department were to withdraw the cases prior to Inauguration Day, the DOJ would be rescuing Trump from his own obstruction.
From the standpoint of the rule of law, the DOJ should continue with the prosecutions and let Trump be the one to pull the plug on the special counsel. That way, Trump would have to commit a crime to fire Jack Smith — a crime that could potentially be prosecuted once Trump leaves office in 2028. At the very least, he, or his attorney general, would have to do something that would cast great opprobrium on the department and on Donald Trump, rather than suggesting that Trump has an unfettered right to eliminate the need to answer to the legitimate federal charges brought against him.
By preempting firing Smith and ridding Trump of the risk of prosecution, the DOJ would thus be committing three critical mistakes: 1) it will have assisted Trump in his intended obstruction of justice without ever requiring Trump to take a political or legal risk; 2) it will have reaffirmed the problematic principle that a sitting president cannot be indicted, and indeed extended it to a set of circumstances involving an already indicted individual who ascends to the presidency pending trial; and 3) it will have degraded the DOJ’s mission by determining prosecutorial decisions in accordance with political, rather than legal, imperatives.
These are all aspects of the decision that fundamentally damage the rule of law in ways the department and the country may never overcome.
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy, and the faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.
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