Special Counsel Jack Smith’s admission that his cases against President Trump are over comes with a caveat: He wants to preserve the possibility that his cases, which he has pursued with zeal, can, like the biblical Lazarus, come alive again in four years. 

The Sun reported on the possibility that the cases could be dismissed on terms favorable to the special prosecutor before Mr. Smith made his motions. He did, in asking Judge Tanya Chutkan to dismiss the election interference case, acknowledged that the prohibition against prosecuting a sitting president is “categorical.”

That was the judgement from the Office of Legal Counsel, which has twice acknowledged the inability of any administration to prosecute a president while he is in office. Judge Chutkan did, as Mr. Smith moved, grant the dismissal “without prejudice,” meaning that a prosecutor could try again after President Trump leaves office.

The special counsel contended that the impossibility of trying Trump between 2025 and 2029 “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 contends that the immunity Trump will enjoy while in office is “temporary.”

In language strictly unnecessary when asking for a dismissal, Mr. Smith takes the opportunity to divulge that the government’s “position on the merits” of Trump’s “prosecution has not changed. But the circumstances have.” He refers to the president-elect’s victory over Vice President Harris on November 5.

A legal scholar, Joshua Blackman, who has argued that Mr. Smith was unlawfully appointed by Attorney General Garland — Judge Aileen Cannon agreed — reckons that Mr. Smith wanted to press his two cases, but that he was “constrained by the OLC.” Mr. Blackman adds: “In theory, some prosecutor in four years can move to reanimate the case.” 

Judge Chutkan, who has been sympathetic to the government’s position throughout the case, avers that “dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office.”

The judge explains that “when a prosecutor moves to dismiss an indictment without prejudice, ‘there is a strong presumption in favor’ of that course.” Trump had requested dismissal with prejudice, setting up a situation in which the question of prejudice might not be fully resolved until after President Trump’s second term is over.

Judge Chutkan quotes another district court case from the District of Columbia for the position that a judge “may override the presumption only when dismissal without prejudice ‘would result in harassment of the defendant or would otherwise be contrary to the manifest public interest.’”

President Trump could argue that even though the charges are dismissed, the possibility that they could be refiled amounts to “harassment” with respect to his constitutional duties. The OLC, which Mr. Smith acknowledges “provides controlling legal advice to the Executive Branch,” advised Mr. Smith to dismiss this case and the Mar-a-Lago one in South Florida.

The Office of Legal Council comprehends that a criminal prosecution of a president would “unduly interfere in a direct or formal sense with the conduct of the Presidency.”  President Trump could argue that charges held in abeyance and then revived after a president leaves office could also affect presidential conduct.

The Department of Justice has considered that question too, and determined that a prosecution of a sitting president is prohibited “even if all subsequent proceedings were postponed until after the President left office.” Mr. Smith writes that the OLC did reckon that a court “might equitably toll the statute of limitations to permit proceeding against the President once out of office.”

None of OLC’s precedents, though, contemplated this scenario, which Mr. Smith describes as one where an indictment “has already been returned against a private citizen prior to his election as President.” The legal sages decided that “although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice.”

Mr. Smith insists that the Mar-a-Lago case against Trump’s two co-defendants — Waltine Nauta and Carlos De Oliveira — will continue “because, unlike defendant Trump, no principle of temporary immunity applies to them.” It is difficult to see, though, how that happens.

Mr. Smith is reportedly planning to resign before Trump takes office. Whomever Trump appoints as the United States attorney for the Southern District of Florida would be unlikely to continue those prosecutions. Plus, too, President Trump could pardon Messrs. Nauta and De Oliveira.

That would leave Judge Cannon’s dismissal of the charges intact, and prevent the 11th United States Appeals Court from taking up its review of her ruling. That could also postpone for another day any possibility that the Supreme Court revisits the constitutionality of the special counsel. 

Mr. Smith appends a footnote to his motion to dismiss that clarifies that the analysis provided by the OLC — which binds him — addresses “only the federal cases pending against the defendant.” That could be an allusion to District Attorney Alvin Bragg’s request that Judge Juan Merchan consider “non-dismissal options” with respect to his state hush money convictions against Trump. Unlike Mr. Smith, Mr. Bragg does not reckon that Trump’s impending presidency mandates dismissal.