The dismissal of Special Counsel Jack Smith’s two cases against President-elect Trump is an acknowledgement that the prosecutor has lost. Now, the decision by two of Trump’s co-defendants  and employees to refuse to testify against their boss looks like a winning bet to avoid decades in prison. Like Trump, they both pleaded “not guilty” to all charges.

The Department of Justice told Mr. Smith that there is a “categorical” ban against prosecuting sitting presidents — notwithstanding his insistence that the “merits” of his cases are still strong, and that he has been undone by mere “circumstances.” For the first time in more than a year, the president-elect is no longer a defendant in a federal criminal case.

The same, though, cannot be said for Trump’s two co-defendants in his classified documents case — his valet, Waltine Nauta, and Mar-a-Lago’s property manager, Carlos De Oliveira. Mr. Smith charged them both with crimes of conspiracy and obstruction, though they did not face the dozens of charges related to the Espionage Act that were brought against the 47th president.

Judge Aileen Cannon found that Mr. Smith was unlawfully appointed — he was hired by Attorney General Garland, without confirmation by the Senate — and dismissed charges against Trump and his employees. Mr. Smith appealed that ruling to the 11th United States Appeals Circuit, and asked the circuit riders to reinstate charges against all three defendants. The appeal has been dismissed in respect of the president-elect. 

In the special counsel’s motion he acknowledges that “dismissing the appeal as to defendant Trump will leave in place the district court’s order dismissing the indictment without prejudice as to him.” Mr. Smith vows, though, that his “appeal concerning the other two defendants” — Messrs. Nauta and De Oliveira — “will continue because, unlike defendant Trump, no principle of temporary immunity applies to them.” 

Realizing that intention would appear to be challenging for Mr. Smith, who reportedly intends to resign before the president-elect takes the oath of office on January 20. The appeal could be pursued by the United States attorney for the Southern District of Florida, but the decision on who holds that position will be Trump’s to make, and the Senate’s to confirm. The most likely outcome appears to be a presidential pardon.

Once Trump retakes the White House, he “shall have Power to grant Reprieves and Pardons for Offences against the United States,” which has been interpreted to mean federal crimes — like the ones alleged by Mr. Smith — as opposed to state crimes. The Supreme Court has held that the power can be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”

If Trump pardons Messrs. De Oliveira and Nauta, Judge Cannon’s ruling on the deficiency of Mr. Smith’s appointment will stand as the final word on Mr. Garland’s decision to hire the special counsel away from prosecuting war crimes at the Hague. That means that Supreme Court adjudication of the question will likely have to wait for another case or controversy. At least two justices on the high court — Clarence Thomas and Brett Kavanaugh — have expressed interest in revisiting precedents related to the naming of special counsels. 

If a pardon does come from the Oval Office, it would vindicate the decisions of Messrs. Nauta and De Oliveira to stand by their boss rather than cut a deal with the government in exchange for immunity or a lighter sentence.

The path not taken for Messrs. Nauta and De Oliveira was trod by an information technology employee at Mar-a-Lago, Yuscil Taveras, who struck a deal with the special counsel’s office. He testified before a grand jury that Messrs. Nauta and De Oliveira conspired to delete surveillance footage from cameras at Mar-a-Lago at the behest of “the boss” — Trump.

Mr. Smith did not allege that the footage was actually deleted, and his indictment references extant images of Mr. Nauta moving boxes that allegedly contained classified material in and out of storage rooms at the Palm Beach mansion. Mr. Smith’s office claimed that Mr. Tavares “repeatedly denied or claimed not to recall any contacts or conversations about the security footage at Mar-a-Lago” before singing a different tune. 

Mr. Nauta, who was born in Guam, was a petty officer in the Navy when Trump tapped him to be his valet at the White House. He continued to serve the 47th president in that capacity after Trump was defeated by President Biden in 2020. Mr. De Oliveira began working as Mar-a-Lago’s manager in January 2022. Mr. Smith accuses him of draining the resort’s pool so that the room containing surveillance servers became flooded.