Special Counsel Jack Smith just made a major filing in the Washington DC criminal case against Donald Trump announcing that the Department of Justice will be dismissing the criminal case against Donald Trump in federal court. I'd like to read for you all the government's motion to dismiss. And then I want to hear from
Karen Freedman Agnifolo, who was previously the number two at the Manhattan District Attorney's Office. This is from the government's motion to dismiss the federal criminal charges against Donald Trump connected with the January 6th insurrection. This case was in Washington, D.C. As a result of the election held on November 5th, 2024, the defendant Donald J. Trump will be inaugurated as president on January 20th, 2025.
and has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting president. But the department and the country have never faced the circumstances here where a federal indictment against a private citizen has been returned and a criminal prosecution is already underway when the defendant is elected president, confronted with this
president in situation, the Special Consultant with the Department of Justice's Office of Legal Counsel, OLC, whose interpretation of the constitutional question, such as those raised here, is binding on department prosecutors. After careful consideration, the department has determined that OLC's prior opinion concerning the Constitution's prohibition on federal indictment and prosecution of the sitting president
apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated. That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the government's proof, or the merits of the prosecution, which the government stands fully behind.
based on the department's interpretation of the Constitution. The government moves for dismissal without prejudice of the superseding indictment under federal rule of criminal procedure 48A. The government has conferred with defense counsel who does not object to this motion. Karen Freeman, I know you're immediate response.
Look, you know, we knew this day was coming. It's such a shame that it has to come. And at a minimum, though, it's, I guess, if you're looking for any silver lining, they said it's without prejudice, which means that they theoretically could bring the case in the future when Donald Trump is no longer president.
However, in reality, that'll never happen because he's surely or likely going to pardon himself. The only thing that I thought was slightly odd was that very last sentence that you read where it said the government has conferred with defense counsel, who does not object to this motion, and the fact that they wouldn't object that it's dismissal without prejudice. That's a term of art, Ben, that they use in the legal world.
that you dismiss something either with prejudice or without prejudice, if it's dismissed with prejudice, because only a court can dismiss a case. So this is a motion. You're moving the court. You're asking the court to dismiss the case. And so really, this is a joint motion because the defendant doesn't object. And it's a joint motion to dismiss without prejudice, meaning you could bring it again in the future. Because if it's a dismissal with prejudice, that's considered double jeopardy. You can no longer bring that in the future.
And so for a moment, you'd say, well, why would the defense agree to that? Why would the Defense Council agree to that? You'd think they'd want a dismissal with prejudice. And the answer is, of course, he's going to pardon himself or somehow orchestrate something so that that happens.
And so that's what's going on here. This case is essentially dead. We knew that would have to happen once Trump is elected. What this means is Jack Smith is already finished wrapping up the case, wrapping up the boxes, categorizing things, filing things.
It means he's written his motion to the or his his report that he that by statute as Special Counsel he has to send over to Merrick Garland. All that's been done. So he's ready today to move the court to dismiss it.
without prejudice, sure the court is going to do it. And that's where we are. This is with the Washington DC case, the Jan 6 case. And of course, then there's the Mar-a-Lago documents case that was already dismissed, but it's on appeal. And the question is, will they withdraw the appeal? The reason that one's slightly different is there's two other defendants in that case, right? Wal-team Nauta and Carlos de Oliveira. So it's unclear what they'll do there.
if they'll move to dismiss the whole case or withdraw the appeal, I should say, with the whole case or just to Donald Trump. One other thing I just wanted to say is for people wondering what's the Office of Legal Counsel or OLC, it's sort of the definitive law office of the White House. And it provides advisory opinions on what things mean and what things don't mean they advise the president. And it's kind of the law firm of the presidency.
And so since this is with respect to a sitting president or a future sitting president or an elected president, it's something they had to confer with the Office of Legal Counsel and that would be binding on the Department of Justice since it's all part of the executive branch.
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And Karen, when you read this motion to dismiss filed by special counsel, Jack Smith, you see how reluctant he was. Like you literally see the tension in his writing as he says the things like, you know, the gravity of the crime charge, the strength of the government's proof, the merits of the prosecution, that this should not be construed as in any way conceding that
This wasn't anything but one of the strongest possible cases that existed, but we are bound now by this precedent within the department and the Constitution that when somebody is elected to the highest office in the land, that the case gets dismissed. I mean, you literally see it jumping off the paper.
Yeah, I agree with you. This is a torture thing. Look, Jack Smith is somebody who I used to work with many years ago. We both worked at the Manhattan DA's office together. He's always been a prosecutor. He's never been in the private sector. He was a federal prosecutor, then a war crimes prosecutor, now a special prosecutor.
This is something that's clearly very difficult for him to do to dismiss a case against somebody who he spent the last almost two years compiling an investigation and prosecution into a former sitting president. He brought this four-count indictment, then they had to supersede the indictment. They've been litigating it up and down in sideways. He's had to endure death threats.
And frankly, this is, he had to deal with the United States versus Trump case, making the president immune for certain things. I mean, a lot's been going on in this case. And Jack Smith, who's just a prosecutors prosecutor, he's not someone with an agenda. Despite having worked with him and knowing him, I couldn't tell you what political party he belongs to. He's not a political guy.
He's really someone who's a public servant and wants to do the right thing. And you can tell, as you pointed out, Ben, this is torture for him to have to do when you have a serious case and you have to dismiss it and you have no choice. But that's Jack Smith, right? He's not going to wait. He's not going to just fight it. He's the guy who's going to do the right thing. And when he is told, this is what you have to do. He's going to do it. That's how he is.
He's not someone who's going to claim that this is false or rigged or didn't happen or fight it and then lose in the courts. He's not that guy. He's a man of integrity and he's a public servant and we should all thank him for his service in doing this. I want to remind everybody as well that Special Counsel Jack Smith
did everything that he could possibly do, right? I mean, he was called, if you want to blame anyone on the delay of bringing the prosecution, it's definitely not. Special counsel, Jack Smith, special counsel, Jack Smith was brought in. He accepted the assignment when it was given to him. He did everything that he could to expedite.
these proceedings, right? He did everything he could. Went to the Supreme Court. You all remember back in December of 2023, saying, look, this is so critical that you hear these issues on absolute immunity now. The Supreme Court said, no, then the Supreme Court delayed until the last possible time. And, you know, look, the Supreme Court
created an entirely new legal doctrine for Donald Trump that never existed in legal textbooks before called absolute immunity. And not only did they make that ruling, but you got to go back to have the Supreme Court really structure is a nice way of putting it their calendar.
to make sure that all possible delays could be afforded to Donald Trump. And I understand that there's a lot of people though who will and have expressed frustration at Merrick Garland. And I think that's we'll do that in another video perhaps. But in terms of Jack Smith's role, Jack Smith was called to duty. He came over here
from being a war crimes prosecutor, did his job, was aggressive, did everything that was asked of him. One where it came to all of the legal documents he could control. But ultimately, I think people are seeing here the profound flaws in a different tier justice system. And it's not the type of different tier justice system that Trump and MAGA rails on when they're the beneficiaries of that
over and over again. Karen, last words from you.
Yeah, look, I'm still wondering what this means for the Manhattan DA case and how they're going to interpret this, because one of the things this talks about is this isn't just the indictment, but it's also the prosecution. And the supremacy clause also will make whatever decision the OLC says apply to the states, meaning the Manhattan DA's office. I think because the prosecution's over and it's just time for sentencing,
Hopefully that will be a different analysis, but that was my first question is what does this mean for the Manhattan DA's office? So I'm sure we'll find out in the coming weeks.
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Karen Freeman, Agnifolo, thank you very much. And also make sure you subscribe to the legal AF podcast. And while you're out at checkout, MidasPlus.com. Thanks everybody for watching. Love this video. Make sure you stay up to date on the latest breaking news and all things Midas by signing up to the Midas Touch newsletter at MidasTouch.com slash newsletter.
