Pushing the pause button for Donald Trump

On Nov. 25, 2024, the Government moved in the U.S. Court of Appeals for the Eleventh Circuit to dismiss the classified documents action without prejudice only as to Donald J. Trump. Counsel for Trump did not object to the Motion. The Government referenced the prior dismissal without prejudice of this action by the U.S. District Court. [Page 13.] The Government also referred to its Motion to Dismiss the Jan. 6^th case, also filed on Nov. 25, 2024, for a discussion of its reasons for this Motion to Dismiss, particularly, that Trump will be inaugurated as president on Jan. 20, 2025. [Page 13.]

The Office of the Legal Counsel (O.L.C.) of the Department of Justice had previously determined that the Constitution prohibits prosecution of a sitting president. As a result, the prosecution of President-elect Trump must be dismissed before his inauguration. O.L.C. Opinion, page 27, Sept. 24, 1973. [Page 1.] Nixon v. Fitzgerald, 957 U.S. 731, 749-750 (1982). [Page 3 of the Motion to Dismiss the Jan. 6^th case.]

The O.L.C. concluded that the Impeachment Judgment Clause of the Constitution did not preclude the prosecution of a sitting president, but that criminal prosecution of a sitting president would violate the separation of powers and unduly interfere in a direct sense in the conduct of the presidency. [Page 3 of the Motion to Dismiss the Jan. 6^th case.] This form of immunity is temporary. It would "result in delay, but not the forbearance, of any criminal trial." 2000 O.L.C. Opinion at page 257. [Page 5 of the Motion to Dismiss the Jan. 6^th case.]

The Government stands behind the merits of its prosecution and moves for dismissal without prejudice under the Federal Rules of Criminal Procedure, No. 48 (a), to permit the Government to re-file its prosecution against Trump at a later date. The Government had conferred with Trump's counsel who does not object to this Motion. [Page 1 of the Motion to Dismiss the Jan. 6^th case.]    

The Motion to Dismiss the Jan. 6^th case maintains that there is a strong presumption that the dismissal should be without prejudice. U.S. v. Florian, 765 F. Supp. 2d 32, 34-35 (D.D.C. 2011). Further, no man is above the law. U.S. v. Lee, 106 U.S. 196, 220 (1882) and O.L.C. Opinion at page 236. [Pages 3 and 4 of the Motion to Dismiss the Jan. 6^th case.]

Order

On Nov. 26, 2024, the Eleventh Circuit granted the Motion in a fourteen-word Order.

Comment

There was no discussion in the Motion or in the Order that the dismissal by the Eleventh Circuit was to be "without prejudice." However, the Motion clearly references the District Court's previous Order dismissing this prosecution without prejudice. Dismissal without prejudice would permit the Government to refile its prosecution at a later date when Trump is no longer in office.

There was also no discussion in the Motion or in the Order of tolling of the statute of limitations. If someone is elected president in 2028 who wishes to refile the prosecution against Trump, it remains to be seen what action the Government might take after that new president is inaugurated on Jan. 20, 2029, and what response Trump will make. Unless there is a tolling of the statute of limitations while Trump is in office for his second term, the five-year statute of limitations under 28 U.S.C 3282 (a) for Trump's actions leading up to and on Jan. 6, 2021, would seem to have expired by Jan. 6, 2026.