Following the outcome of this year’s presidential election in which Donald Trump won a second term, legal analyst Barbara McQuade said on Saturday that Department of Justice (DOJ) special counsel Jack Smith may be able to “revive” the criminal cases he launched against the president-elect.
Trump, who won the 2024 election over Vice President Kamala Harris, still has two pending criminal matters—his federal 2020 election subversion case and the Mar-a-Lago classified documents case—that are said to be set aside due to his victory since sitting presidents cannot be criminally prosecuted under the law.
The president-elect has pleaded not guilty to all charges in the cases. However, with these cases yet to go to trial, Trump has vowed to dismiss Smith “within two seconds” of assuming office, as he told conservative radio host Hugh Hewitt in October.
However, The New York Times reported on Wednesday that Smith intends to conclude his work and step down with his team before then, completing all significant aspects of the investigations himself.
Smith’s office is currently developing a strategy to conclude the cases, though unforeseen factors, including court rulings or actions by other government officials, could potentially affect his timeline.
In a Saturday interview appearance on MSNBC‘s The Katie Phang Show, McQuade, a former U.S. attorney for the Eastern District of Michigan under the Barack Obama administration, spoke about Smith’s reported plans and how he may be able to “revive” Trump’s cases.
“I have heard from a number of people saying, ‘Why should Jack Smith pull the plug on his own case? Why not just let Trump just fire him, make him go through that exercise, so that people can see that it was Trump who ended this?’ And I think it is because Jack Smith can have a lot more control if he ends it on his own terms,” McQuade said.
She explained: “There are a couple things he can do. One…is to issue a full-throated report on both of the cases; the January 6th election interference case, as well as the documents case in Florida—those two things. The other thing he could do, Katie, and I don’t know if this would withstand all of the machinations that Trump will certainly try to put up against it—to dismiss the cases without prejudice and make the argument later that the statute of limitations is tolled during the Trump presidency and revive the cases in 2029. I think there is a 50-50 shot that succeeds, so if he ends it now with prejudice, that keeps those cases alive.
McQuade said that “it would put the Trump administration in the untenable spot of either accepting that or having to refile the cases just so they can dismiss them with prejudice.”
Newsweek has reached out to the DOJ via online email form for comment.
A sitting president cannot be prosecuted for a crime under DOJ policy and the U.S. Constitution says a sitting president can grant pardons for federal crimes. Whether that can apply to pardoning himself—if he were to be convicted in the federal election subversion case remains to be seen as this has never happened in U.S. history. In the president-elect’s classified documents case, Judge Aileen Cannon, who oversaw the case and was appointed by Trump in 2020, dismissed it. Smith, however, has since filed an appeal.
SAUL LOEBMANDEL NGAN/AFP/Getty Images
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