Special Counsel Jack Smith speaks to members of the media at the U.S. Department of Justice building in Washington, DC on August 1, 2023.
Saul Loeb | AFP | Getty Images
Special counsel Jack Smith asked a federal appeals court on Wednesday to stay proceedings to overturn a judge's decision to dismiss the classified criminal case against President-elect Donald Trump and two other defendants.
Smith's request cited Trump's election last week to a second term in the White House.
On Friday, the special counsel cited the same reason when he asked a federal judge in Washington, D.C., for a pause in proceedings in a separate criminal case charging Trump with crimes related to his attempt to overturn his defeat in the 2020 presidential election. This request was granted.
Both moves reflect expectations that the Justice Department will drop both criminal cases against Trump as a result of his election.
DOJ guidelines say the department cannot prosecute a sitting president. But even if that policy were not in effect, Trump as president has the power to order his attorney general, who will lead the Justice Department, to drop both cases.
Trump announced Wednesday that he would nominate controversial Florida congressman Matt Gaetz as his attorney general.
NBC News reported earlier Wednesday that Smith and his team of prosecutors in the special counsel's office plan to resign before Trump is sworn in as president in January. Trump was expected to fire Smith if he did not resign.
On Tuesday, a New York state judge granted a request from the Manhattan district attorney's office to delay proceedings in a third criminal case against Trump for a week to give prosecutors time to consider the impact of his election victory on the case. Trump is scheduled to be sentenced in the case on Nov. 26 on nearly three dozen counts of falsifying business records related to a 2016 hush-money payment to porn star Stormy Daniels.
Florida federal court Judge Aileen Cannon earlier this year dismissed the criminal case against Trump in which Smith accused the Republican of illegally withholding confidential government records after he left office in early 2021 and obstructing officials' efforts to recover them to have.
Cannon, who was nominated by Trump, also filed obstruction charges against Trump's valet Walt Nauta and a worker at his Mar-a-Lago resort, Carlos de Oliveira.
Cannon ruled that Smith's appointment as special counsel by Attorney General Merrick Garland, who heads the Justice Department, violated a clause in the U.S. Constitution that governs how government officials are appointed.
Smith asked the 11th U.S. Circuit Court of Appeals to overturn Cannon's ruling.
But in its filing with this court on Wednesday, Smith's office wrote: “Due to the election on November 5, 2024, it is expected that one of the defendants in this case, Donald J. Trump, will be confirmed as President-elect” on January 6 2025 and inaugurated on January 20, 2025.”
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“The Government respectfully requests that the Court stay this appeal – and postpone the deadline for the Government’s response letter, currently due on November 15, 2024 – until December 2, 2024, to allow the Government time to address this unprecedented circumstance “assess and determine the appropriate course forward consistent with Department of Justice policy,” the filing said.
The filing also states that if the stay is granted, prosecutors will inform the appeals court “of the outcome of its deliberations and, if appropriate, file their response brief no later than December 2, 2024.”
Trump is being charged in an Atlanta court with crimes related to his attempt to overturn President Joe Biden's White House victory in 2020.
However, Trump is not expected to stand trial in the case during his term as president. However, the case could be stayed until he leaves office in 2029.
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