Jack Smith’s Mar-a-Lago Case Against Trump Is Ended — Not With a Bang but a Whimper
The 11th Circuit dismisses an appeal, ending a prosecution that featured a nighttime search of the Palm Beach mansion.
The dismissal of the case against two of President Trump’s co-defendants in Special Counsel Jack Smith’s Mar-a-Lago prosecution marks the end of the classified documents case that once threatened to convict Mr. Trump under the Espionage Act. He could have faced decades in prison.
The case now ends, as the poet put it, “not with a bang but a whimper.” The final blow came from the 11th United States Appeals Court, which on Tuesday granted a motion from the Department of Justice to dismiss an appeal by Mr. Smith. The appellate ruling comprised but one line — “This appeal is DISMISSED.”
Mr. Smith’s motion had sought to overturn Judge Aileen Cannon’s ruling that Mr. Smith was unlawfully appointed because he was, when named to the post, a war crimes prosecutor working for a foreign entity and had never been confirmed by the Senate. She dismissed the charges against Mr. Trump and two of his employees — his personal valet, Waltine Nauta, and Mar-a-Lago’s manager, Carlos De Oliveira. Her dismissal was “without prejudice,” meaning that the charges could be filed again one day, though that appears to be among the longest of long-shots.
The more than three-dozen charges against Mr. Trump — many under the Espionage Act — were already dismissed after he won November’s election against Vice President Harris. The Department of Justice ruled that there is a “categorical” ban on prosecuting a sitting president. Mr. Smith who resigned before Mr. Trump’s inauguration, insists that the “merits” of his cases would have secured a conviction “but for” Mr. Trump returning to the presidency.
The dismissal of charges against Messrs. Nauta and Oliveira is a vindication of their strategy of sticking by their boss even as Mr. Smith piled conspiracy and obstruction charges against both of them for allegedly aiding Mr. Trump’s retention of classified documents — some “top secret” — at his Palm Beach manse.
Another employee at Mar-a-Lago, Yuscil Taveras, testified to a grand jury that he observed “efforts to delete security footage” relating to those documents. Mr. Smith granted him immunity, and intended to call him at a trial that never transpired. Judge Cannon, even before she disqualified Mr. Smith, evinced skepticism with respect to the government’s case against the then-former president.
Attorney General Garland named Mr. Smith as a special counsel on November 18, 2022, just two days after Mr. Trump announced his intention to regain the White House. Part of Mr. Smith’s remit was to “conduct the investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation.”
Three months before, federal agents had searched Mar-a-Lago pursuant to a warrant approved by Mr. Garland and a magistrate judge, Bruce Reinhart. The criminal referral came from the National Archives and Records Administration, which had been engaged in efforts to recover documents that Mr. Trump took from the White House after the end of his term. Mr. Trump insisted he broke no law by retaining those documents, and that his possession of them was permitted by the Presidential Records Act.
Mr. Smith disagreed, but Judge Cannon at one point contemplated formalizing that defense into possible jury instructions. The 11th Appeals Circuit, though, reversed her when, in an inchoate stage of the case, she appointed a special master to superintend the government’s handling of evidence. The appellate jurists overruled her on that issue, accusing her of “a radical reordering of our case law” and a violation of “bedrock separation-of-powers limitations.”
With the dismissal of the charges against Messrs. Nauta and De Oliveira, though, Judge Cannon’s ruling disqualifying Mr. Smith is now law. Mr. Garland has denied that he would have made such “a basic mistake about the law.” She ruled, “Since November 2022, Special Counsel Smith has been exercising power that he did not lawfully possess.’ All actions that flowed from his defective appointment … were unlawful exercises of executive power.”
The 11th Circuit’s dismissal of the case could, though, amplify demands from Democrats that Attorney General Bondi release Mr. Smith’s final report on the Mar-a-Lago case. Judge Cannon determined that releasing the dossier while the case was ongoing would injure the due process rights of Messrs. Nauta and De Oliveira. Now that the cloud of criminal jeopardy has lifted, that logic no longer possesses the same salience.
Mr. Trump’s rage at Main Justice for sanctioning the FBI search on Mar-a-Lago has become an increasing factor in Washington and Florida. The search — during which agents entered the bedchamber of the first lady — was cited, by Senator Grassley, among others, as a ground for the dismissal of the FBI director, Christopher Wray.
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