Opinion - Dismissal of Trump’s criminal cases does not prevent future prosecutions in 2029

All of President-elect Donald Trump’s federal criminal cases have been dismissed. Despite reports of Trump taking a “victory lap,” Americans must understand what these significant legal events mean.

No, the dismissals — both for the election interference charges and for mishandling classified documents — does not mean justice is dead. No, Trump the defendant has not “WON,” as he proclaimed on social media.

Nor was Special Counsel Jack Smith’s decision to dismiss “a serious mistake,” as Sen.-elect Adam Schiff (D-Calif.) said. No, District Judge Tanya Chutkan did not put “an end to the federal effort to hold Trump criminally responsible for his attempts to hold onto power after losing the 2020 election,” as Reuters reported.

Most importantly: No, this does not necessarily mean the end of federal prosecutions against Trump.

Both cases involve dismissals “without prejudice,” an important legal distinction. This means the dismissals do not reflect any judicial decisions about the underlying merits of the cases. Furthermore, dismissals without prejudice allow the prosecution to refile charges later.

Don’t assume that these dismissals confirm that Trump is immune from prosecution and therefore above the law. The Supreme Court’s recent decisions probably have not helped in this perception. While the court’s decision in Trump v. U.S. granted Trump some immunity in his election interference case, it is not a “Get Out of Jail Free” card.

In that case, the court created a three-tiered system of presidential immunity: no immunity for unofficial acts; absolute immunity for official acts falling under core and exclusive presidential powers; and “presumptive immunity” for presidential acts “within the outer perimeter of his official responsibility.”

Yes, that third “presumptive immunity” category is as unclear and amorphous as it sounds. The court acknowledges this. For example, the decision described the immunity status of “interactions with the Vice President, state officials, and certain private parties, and his comments to the general public” as being uncertain. Consequently, the justices did what they usually do — left it for the lower courts to figure out.

Nevertheless, the court provided guidance regarding certain allegations. Trump is presumptively immune for his communications with Vice President Mike Pence concerning things he is required to do by law, such as certifying the election results. However, a presumption is not a foregone conclusion; the prosecution can challenge it. If the prosecution can show that their criminal prosecution would not endanger the authority and responsibilities of president and the executive branch, then there would be no immunity regarding those communications. Of course, that will be much easier when Trump is no longer president.

However, the prosecution’s allegations are not limited to those that may be subject to immunity. On Aug. 27, Smith filed a superseding indictment that is more consistent with Supreme Court guidance. There are plenty of acts allegedly performed by Trump to interfere with the 2020 election that are not protected by immunity, and the same is true for the documents case. The immunity that the court recognized is not enough to shield Trump from future prosecution.

There is also the “temporary immunity” related to the Department of Justice’s long-standing policy not to prosecute a sitting president. This is the policy that drove Smith to request the dismissal of the two cases.

This policy is not about insulating the president from criminal prosecution, but about balancing the interest of the American people in having a functional government against their interest in holding individuals accountable for criminal conduct. Incarceration of a sitting president would inherently disrupt government functions.

For better or worse, Trump has been duly elected for a second term. Criminal prosecution, even though valid, would prevent him from performing the duties for which the populace elected him. But this same policy clearly states, “the President is not above the law … he is ultimately accountable for his misconduct that occurs before, during, and after his service to the country.”

In addition, statutes of limitation might not prevent Trump from being prosecuted after his second term as president ends. The general statute of limitation for non-capital federal crimes is limited to five years, but with a big caveat: “except as otherwise expressly provided by law.” The statute of limitations for “conspiracy to defraud the United States,” one of Trump’s charges in the election interference case, does not start running until the last overt act in furtherance of the conspiracy is performed. As long as Trump continues claiming that the 2020 election was stolen, his alleged conspiracy to defraud may be considered ongoing.

Moreover, “conspiracy to obstruct an official proceeding” has no statute of limitation if the offense results in death. Although proving legal causation is complex, lives were lost as a result of Jan. 6: Capitol Police officer Brian Sicknick died, along with four Trump supporters. These deaths might be cited to argue that no statute of limitation should apply to Trump’s prosecution for this crime.

Our legal system is complex and confusing, and justice delayed can feel like justice denied. But justice in America is still possible. We cannot cede our commitment to the rule of law. These dismissals do not mark the end of Trump’s criminal prosecutions.

No one is above the law in this country — not even President-elect Trump.

Michele Okoh is a former prosecutor and criminal defense attorney and is currently an assistant professor of law at Lewis and Clark Law School.

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