WATCH: Network legal analyst says Jack Smith ‘left the window open’ to prosecuting Trump ‘down the line’

MSNBC legal analyst Kristy Greenberg said Monday that special counsel Jack Smith’s move to dismiss his case against President-elect Donald Trump leaves open the “possibility” for later prosecution.

Smith wrote in a Monday filing that previous opinions by the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) “apply to this situation” requiring dismissal ahead of Trump’s inauguration. Greenberg, on “Chris Jansing Reports,” read from the filing, arguing the special counsel’s language suggests he may seek to prosecute Trump after his presidency.

WATCH:

“In this motion, Jack Smith says that yes, ‘the Constitution requires dismissal in this context, consistent with the temporary nature of immunity afforded to a sitting president, it doesn’t require dismissal with prejudice,’” Greenberg said. “And then goes on to say, ‘immunity from prosecution for sitting president would not preclude such prosecution once the president’s term is over or he is otherwise removed from office by [resignation] or impeachment.’ So there is a possibility here that potentially he could be prosecuted down the line.”

“There’s a real question whether or not the statute of limitations would be told because he actually cannot be prosecuted for this period of time,” she added. “But the real question for me will be whether or not when the new AG [attorney general] comes in — what’s not clear is if Judge [Tanya] Chutkan will actually rule on this motion right away or if she will wait for the new AG, who may take a different position and may say this should be dismissed with prejudice, meaning then it’s completely over, there’s no way to bring this back after he is done with his term.”

Greenberg suggested she would anticipate Trump’s incoming attorney general to support the case being dismissed with prejudice.

“The fact Jack Smith kind of left the window open here, I think, is interesting,” she added.

Smith asked Chutkan to pause all deadlines in his election interference case shortly after Trump won the election to enable prosecutors to evaluate their next steps. He indicted Trump in August 2023 for alleged efforts to overturn the 2020 election, spending months attempting to accelerate the case and even asking the Supreme Court to hear Trump’s presidential immunity appeal before the lower court.

The case experienced months of delays as the Supreme Court considered Trump’s appeal, ultimately deciding in July that former presidents are immune from prosecution for official acts taken in office. Smith subsequently filed a superseding indictment alleging that Trump acted outside of his official duties.

Chutkan allowed Smith to file a lengthy motion, including evidence against Trump, on the public docket in the weeks before the election. Trump’s attorneys characterized the special counsel’s efforts to publish the materials as election interference.

“The American People re-elected President Trump with an overwhelming mandate to Make America Great Again,” Trump communications director Steven Cheung said in a statement. “Today’s decision by the DOJ ends the unconstitutional federal cases against President Trump, and is a major victory for the rule of law. The American People and President Trump want an immediate end to the political weaponization of our justice system and we look forward to uniting our country.”

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