Special Counsel Jack Smith’s request to dismiss the election interference case against President Trump is a stunning — though no longer shocking — denouement to a landmark prosecution.

The request comes to Judge Tanya Chutkan in a six-page motion. Mr. Smith acknowledges that it “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.” Trump takes office January 20.

Mr. Smith writes that America has “never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President.” The special counsel consulted the DOJ’s Office of Legal Counsel, which determined that “this prosecution must be dismissed before the defendant is inaugurated.”

The special counsel explains that the prohibition on prosecuting a sitting president 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.” Mr. Smith reckons that if Trump had not won, the government could have taken the case to a jury — and won a conviction.  

The special counsel explains that the prohibition on prosecuting a sitting president 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.” Mr. Smith reckons that if Trump had not won, the government could have taken the case to a jury — and won a conviction. The prosecutor’s request that the case be dismissed “without prejudice” signals that he has determined that it could be brought again — when Trump is no longer president.   

The federal rules of criminal procedure mandate that a case can be dismissed by the government “with leave of court,” meaning that Judge Chutkan will have to agree to the motion. If she does agree to banish the charges, Mr. Smith writes that there “is a strong presumption that such a dismissal should be without prejudice.” District Attorney Alvin Bragg, in the hush money case based out of New York, also described Trump’s immunity as “temporary” in requesting a freeze in the proceedings — but not a dismissal.  

Mr. Smith writes that his “position on the merits” of Trump’s “prosecution has not changed. But the circumstances have.” The special counsel reasons that Trump’s win “sets at odds two fundamental and compelling national interests: on the one hand, the Constitution’s requirement that the President must not be unduly encumbered in fulfilling his weighty responsibilities …  and on the other hand, the Nation’s commitment to the rule of law.”

The OLC has twice — in 1973 and 2000 — determined that sitting presidents are immune from prosecution. Those precedents dictated Mr. Smith’s — and Attorney General Garland’s  — position that “the Constitution requires that this case be dismissed before the defendant is inaugurated.” Mr. Smith, though, ends his motion by declaring that this “outcome is not based on the merits or strength of the case against the defendant.”