Dahlia Lithwick and Mark Joseph Stern write:

The six-page filing that special counsel Jack Smith submitted Monday is surely one of the strangest requests a federal prosecutor has ever had to make. Smith moved to dismiss charges against Donald Trump for election subversion, asking Judge Tanya Chutkan to toss out the case due to an “unprecedented circumstance”: The defendant has, of course, been reelected president. In the filing, he assures the judge (and the public) that the government “stands fully behind” the “gravity of the crimes charged,” “the merits of the prosecution,” and “the strength of the government’s proof.” The one teeny problem is that the defendant is about to reenter the office that he is accused of criminally abusing just four years ago (the exact subject of the doomed indictment). So, according to Smith, Trump is clearly guilty of multiple felonies—and constitutionally immune from prosecution for those felonies, in the view of the Justice Department.

It is not Smith’s fault that his investigation has reached such a premature and inglorious end. His hand was forced by a series of decisions outside his control, including the Supreme Court’s aggressive intervention in its immunity decision in July, which helped pave the defendant’s path back to the White House. Moreover, while Smith’s move is undoubtedly a surrender, it’s a tactical one that theoretically gives the special counsel time to produce a comprehensive public report detailing Trump’s alleged crimes. The filing even leaves the door open to restarting the prosecution after Trump leaves office, though it’s now nearly impossible to imagine 2029 Trump facing real consequences for his attempt to overturn the 2020 election.

None of this was inevitable: Shortly after Jan. 6, it felt eminently plausible, even likely, that the once and future president would face accountability for his misconduct. After the 2024 election, this notion seems almost laughable. As a practical matter, it is past time to put to bed the idea that no man is above the law. Trump is; who could deny it? The Supreme Court has put him there, depriving the public of a trial—which will now almost certainly never happen—a trial that could have placed Trump’s assault on democracy at the center of the election. As Rick Hasen explained in Slate, the court’s decision, in tandem with the election results, heightens the risk of criminal election subversion in the future, sending the message to aspiring autocrats down the road that they, too, can lawlessly obstruct democracy and get away with it. [Continue reading…]