Trump would've been convicted if he weren't elected president, says Special Counsel's report

Donald Trump would have been convicted in the 2020 election subversion case if he were not elected as the President of the United States, said Special Counsel Jack Smith in a report released on Tuesday.

The US law says that a sitting president cannot be prosecuted. As per the policy, in November 2024, Smith had filed for the dismissal of two cases he was pursuing against Trump. While one was the election subversion case, the other was related to Trump illegally keeping classified documents after leaving office.

The election subversion case relates to Trump’s failed attempt to illegally overturn the 2020 presidential election that outgoing US President Joe Biden won. On January 6, 2021, as the Senate was meeting to certify the election result, Trump egged on several thousands of his supporters to attack the US Capitol who went on to storm the Capitol with the intention to hijack the certification and illegally force the senators to certify the election in favour of Trump.

In his report released on Tuesday, Smith said there was sufficient evidence to convict Trump in a trial, but his election disallowed it.

In his report, Smith said that the constitutional prohibition on a sitting president’s prosecution is the only reason Trump was not convicted and that the dropping of the case against him because of his election as the president “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 office stands fully behind”.

Smith further said, “Indeed, but for Mr. Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”

Smith said that when it became clear that Trump had lost the election in 2020 and that “lawful means of challenging the election results had failed, he resorted to a series of criminal efforts to retain power”.

Even though the Trump-incited assault on the US Capitol is the starkest public memory of Trump’s campaign to overturn the 2020 election results, his efforts also included pressurising officials to state officials to commit fraud, pressurising the then-Vice President Mike Pence to illegally certify the election result in his favour, and use fraudulent electors to overturn the result.

Noting that Trump turned the transition of power violent for the first time in over a century, Smith said, “Until Mr. Trump obstructed it, this democratic process had operated in a peaceful and orderly manner for more than 130 years.”

After losing the 2020 presidential election, Trump never conceded the election. He and his supporters have maintained to this day that he had won the election and that Biden and Democrats ‘stole’ the election from them.

In recent days, Trump’s legal team had worked to block the release of the report. They rejected the report as an “attempted political hit job which sole purpose is to disrupt the presidential transition”,

Even as Smith has now dropped cases against Trump, he has left open the possibility of prosecution once Trump demits office in 2029 as the constitutional prohibition on his prosecution would then be lifted. However, it is not certain if his acts would still be eligible for prosecution as the statute of limitation of five years on most federal cases would have expired by then. Some legal scholars, however, say that Trump’s second term of 2025-29 should not be taken into account when deciding the question of statute of limitation. If that’s how it goes, then Trump could theoretically be prosecuted once he demits office in 2029.