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The US Department of Justice is seeking to drop two federal criminal cases against Donald Trump, abandoning its historic attempts to prosecute the former president after voters sent him back to the White House for another term.

Special counsel Jack Smith, who was appointed to oversee DoJ investigations involving the former president, said in a court filing in Washington on Monday that a case accusing Trump of interfering with the 2020 election must be dismissed before his inauguration in January. He cited a long-standing DoJ policy against indicting and prosecuting a sitting president.

“That 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,” Smith wrote.

Smith’s office cited the same policy in a filing with a US appellate court seeking to end proceedings against Trump in a separate case over the retention of classified documents. That case had already been dismissed by a federal judge, and Smith had appealed against the dismissal.

Trump wrote on X: “These cases, like all of the other cases I have been forced to go through, are empty and lawless, and should never have been brought.”

He added: “It was a political hijacking, and a low point in the History of our Country that such a thing could have happened, and yet, I persevered, against all odds, and WON.”

The filing in the election interference case seeks dismissal “without prejudice”, meaning the case may be refiled at a later stage. 

For now, the requests will sound the death knell for what has been an unprecedented effort to prosecute an ex-president, in two separate cases, for alleged crimes at the core of America’s democratic system of government.

The DoJ indictment that last year accused Trump of mishandling classified documents made him the first former US president to face federal criminal charges. It was quickly followed by the election interference case, which focused on the events between the 2020 election and January 6 2021, when a mob of Trump supporters stormed the Capitol.

Some Democrats had hoped the legal challenges — which also included two separate criminal cases in state courts — would dent Trump’s popularity leading up to the 2024 polls, but in the end they only galvanised his base.

Trump has pledged to seek retribution from individuals he believes have been wronged, and has called for the prosecution of his political opponents, including current vice-president Kamala Harris.

Since his appointment as special counsel in November 2022, Smith faced a tight timeline to obtain indictments against Trump ahead of the 2024 election. He also became a target of fierce attacks by Trump’s allies, who have accused the DoJ of unleashing a political witch hunt against the former president — claims strenuously denied by the justice department.

Only one of Trump’s criminal cases ultimately made it to trial: a New York state court proceeding over alleged “hush money” payments to a porn actor, in which he was convicted on all 34 counts. Trump’s sentencing was postponed repeatedly, however, and last week a court said the delay would be extended indefinitely as Trump returns to the White House.

Smith was one of several special counsels appointed by US attorney-general Merrick Garland to oversee politically sensitive investigations. One was named to examine President Joe Biden’s handling of classified documents, while another was tasked with overseeing cases against Biden’s son Hunter. Joe Biden was never prosecuted and Hunter was charged in two cases.

Smith, a career prosecutor whose past jobs have included working at a special court at The Hague hearing Kosovo war crimes cases, acknowledged the unprecedented nature of his work in the filings on Monday.

“The government’s position on the merits of the defendant’s prosecution has not changed. But the circumstances have,” he added, citing Trump’s win in the presidential election.

Smith’s requests cite two DoJ opinions issued in 1973 and 2000, which held that prosecuting a sitting president would “unduly interfere” with the presidency.

While the classified documents appeal would be dropped against Trump, Smith noted that it would continue against two co-defendants, Trump aide Walt Nauta and a property manager at Trump’s Mar-a-Lago estate. Both have pleaded not guilty.

Federal prosecutors have filed a motion to dismiss the Jan. 6 and Mar-a-Lago documents cases against Donald Trump.

The move was widely expected. Just a day after the election, Smith began to unwind the federal cases against Trump: the first for clinging to power in 2020, events that resulted in the storming of the U.S. Capitol; the second for hoarding classified documents and obstructing FBI efforts to retrieve them.

The “Department’s position is that the Constitution requires that this case be dismissed before the defendant is inaugurated,” special counsel Jack Smith said in the filing related to the Jan. 6 case. “And 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.”

In a separate filing, Smith also moved to dismiss the documents case against Trump. A Trump-appointed federal judge had previously dismissed the case against finding the prosecutor was unconstitutionally appointed. The Justice Department had appealed that ruling, but that decision now stands.

Smith said, however, the case against Walter de Nauta and Carlos de Oliviera, the two co-defendants, will continue. The federal judge’s order had covered the two men, too.

“The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them,” he said in the filing.

Monday’s filing is in line with longstanding Justice Department policy that says a sitting president cannot be indicted or tried on criminal charges because it would violate the Constitution and interfere with the working of the executive branch.

In a statement, Steven Cheung, Trump’s spokesman, said the Justice Department’s move “ends the unconstitutional federal cases against President Trump, and is a major victory for the rule of law.”

Over the summer, the U.S. Supreme Court said the Constitution gave the president broad immunity, putting the cases against Trump in peril.