The move comes not due to a lack of merit in the charges, but because of a long-standing Justice Department policy that prevents the prosecution of a sitting president.

Smith has urged U.S. District Judge Tanya Chutkan to dismiss the election interference case just weeks before Trump's return to the Oval Office. "The country has never faced a situation where a federal indictment against a private citizen is already underway when that defendant becomes President," Smith's motion stated.

The Special Counsel's Office consulted the Department's Office of Legal Counsel, whose interpretations are binding for prosecutors. According to the motion, the OLC's position is that the Constitution's prohibition on federal prosecution of a sitting president applies in this scenario, necessitating the dismissal of the case before Trump's inauguration.

However, Smith requested that the appeal continue against Trump’s two co-defendants, Walt Nauta and Carlos DeOlivera, in the classified documents case. Both Nauta and DeOlivera have pleaded not guilty to obstruction charges related to classified materials Trump allegedly mishandled after leaving office. "The appeal concerning the other two defendants will continue because, unlike defendant Trump, no principle of temporary immunity applies to them," the filing stated.

Earlier this month, Judge Chutkan had canceled remaining deadlines in the election interference case. This came after Smith sought time to assess the unprecedented circumstances following Trump's election victory and determine a course of action consistent with DOJ policy.

Trump, who previously pleaded not guilty to federal charges of attempting to overturn the 2020 election results, faced accusations of multiple illegal acts to maintain power. These included creating a slate of "fake electors," pressing the Justice Department for false election crime investigations, seeking the vice president’s assistance to alter election results, and spreading false election fraud claims, especially during the January 6 Capitol attack.

Judge Aileen Cannon previously dismissed the classified documents case against Trump, finding that Smith was improperly appointed. Smith’s team then appealed this ruling to the 11th Circuit Court of Appeals. Smith has now moved to dismiss his appeal concerning Trump but maintains it for Nauta and DeOlivera, pointing out that no temporary immunity applies to the latter.

With Smith submitting his motions a week ahead of the deadline, there is now speculation about whether he can close his office and submit his final report to Attorney General Merrick Garland before Inauguration Day, as required by DOJ regulations for special counsels.