Special counsel for the Department of Justice Jack Smith moved to dismiss two federal criminal cases against President-elect Donald Trump this week. (Trump, of course, was charged with plotting to subvert the 2020 presidential election and with refusing to return highly classified materials after he left the White House.)
In his withdrawal, Smith maintained that the cases were both solid and serious, but that they were no longer possible, as it is unconstitutional to charge a sitting president with a crime.
Smith’s office wrote that the constitutional “prohibition 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.”
Trump’s transition team is claiming the dismissal as a “major victory for the rule of law,” as Trump spokesperson Steven Cheung phrased it.
Vice President-elect J.D. Vance, 40, shared the official Trump-Vance statement (below), and revealed that he had considered Trump’s last days as potentially having an incarcerated, rather than a triumphant, ending.
Vance — who will become the third youngest Vice President in American history — wrote of his 78-year-old boss: “If Donald J. Trump had lost an election, he may very well have spent the rest of his life in prison.”
If Donald J. Trump had lost an election, he may very well have spent the rest of his life in prison.
These prosecutions were always political. Now it’s time to ensure what happened to President Trump never happens in this country again. https://t.co/18dB65naNG
— JD Vance (@JDVance) November 25, 2024
Vance, a Yale Law School-educated attorney, wasn’t practicing hyperbole either when he pictured Trump incarcerated into his sunset years. Vance knows the law and understood the “gravity of the crimes charged” — as Smith phrased it — in the cases against Trump.
In October, prior to Trump’s election win, Georgetown Law professor Mary McCord commented on the strength and potential consequences of legal proceedings against Trump if they were able to go forward, saying “there’s no question in my mind that anyone else if found guilty of the offenses charged in this indictment, even if not found guilty of all of them, even just a handful of them, would serve time in prison.”
Noting in Just Security that a focus on the maximum sentencing available in the guidelines can be misleading, law professor and former federal prosecutor David Aaron nevertheless reported that “the Espionage Act charges the defendant faces carry a maximum prison sentence of ten years. The Tampering (and related Conspiracy) and Concealment charges each carry a maximum prison sentence of twenty years. The Scheme to Conceal and False Statements charges each carry a maximum prison sentence of 5 years.”
In other words, Vance didn’t need a lot of imagination to conjure a picture of an octogenarian Trump behind bars in his final days.
Pace Law professor Bennett Gerstman concurred, saying of the January 6 case: “The counts with the most severe penalties call for a maximum of 20 years’ incarceration.” Gerstman also predicted that Judge Merchan — in the “hush money” case in New York — would give Trump two years: “I could see Judge Merchan sentencing him to 24 months in jail.”
