Smith also asked that the appeal in the classified documents case against Trump's two co-defendants, Walt Nauta and Carlos De Olivera, be allowed to continue. hat prohibition is categorical and 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 Government stands fully behind," Smith stated in his motion. "The country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President," the motion said. "After careful consideration, the Department has determined that OLC's prior opinions concerning the Constitution's prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result t