Special counsel Jack Smith sought Monday to dismiss the charges against Donald Trump in his federal January 6 case.
The move was quick to be hit by ire from legal analysts who were quick to express their disappointment that Trump could get away without having a jury decide his guilt or innocence.
Former federal prosecutor Harry Litman posted on X, "The most important line in the brief: '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.'"
However, Just Security co-editor-in-chief Ryan Goodman pointed out on BlueSky "their articulated decision to favor a motion to dismiss the case rather than to hold the indictment in abeyance."
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MSNBC host, Katie Phang questioned, "So I’m thinking that the DOJ, in moving to dismiss without prejudice, may seek to revive this prosecution after Trump leaves office, by arguing that the statute of limitations was tolled while he was president."
She later pointed out that Smith argued in the last paragraph of his motion to dismiss, “consistent with the temporary nature of the immunity afforded a sitting president” the Government can seek to prosecute Trump again “once his term is over or he is otherwise removed from office by resignation or impeachment.”
It was something that Lawfare's Roger Parloff also pointed out on BlueSky.
Smith said "without prejudice" means that "a new indictment could theoretically be returned after Trump's term (with an argument for tolling of the statute of limitation)."
Former federal prosecutor Barb McQuade also highlighted the "without prejudice" comment in the request. However, she also noted, "there may be no appetite in 2029, but this preserves that option."
"You can have a failed coup as a little treat in our constitutional order. The Constitution and the rule of law took another, though inevitable, hit today," lamented Georgia law professor Anthony Michael Kreis.
"Well not unexpected but infuriating & sad nonetheless," former federal prosecutor Shanlon Wu said, also on BlueSky.
"A sickening abdication of the rule of law," mourned lawyer Luppe B. Luppen a.k.a. NYCSouthpaw on BlueSky.
Legal analyst Imani Gandy complained, "Merrick Garland is fecklessness personified."
Her reference echoes progressives who believe that had Garland moved faster on the matters, the cases would have gone to court before the 2024 election.