Special counsel Jack Smith is evaluating how to wind down the two federal cases against Donald Trump before he takes office in light of Justice Department protocol that says sitting presidents cannot be prosecuted, a source has said.
Mr Smith charged Mr Trump last year with plotting to overturn the results of the 2020 presidential election and illegally hoarding classified documents at his Mar-a-Lago estate in Florida.
But Mr Trump’s election defeat of Kamala Harris means the Justice Department believes he can no longer face prosecution in accordance with decades-old department legal opinions meant to shield presidents from criminal charges while in office.
By moving to end the cases before the inauguration in January, Mr Smith and the Justice Department would avert a potential showdown with Mr Trump.
The president-elect said as recently as last month that he would fire Mr Smith, who was appointed in November 2022 by attorney general Merrick Garland, “within two seconds” of taking office.
NBC News first reported Mr Smith’s plans.
Mr Smith’s two cases charge Mr Trump in a conspiracy to undo the election results in the run-up to the Capitol riot, and with retaining top secret records at his Mar-a-Lago estate and obstructing FBI efforts to recover them.
The classified documents case has been stalled since July when a Trump-appointed judge, Aileen Cannon, dismissed it on grounds that Mr Smith was illegally appointed.
He has appealed to the Atlanta-based 11th US Circuit Court of Appeals, where the request is pending.
In the 2020 election interference case, Mr Trump was scheduled to stand trial in March in Washington, where more than 1,000 of his supporters have been convicted of charges for their roles in the Capitol riot, but the case was halted as Mr Trump pursued his sweeping claims of immunity from prosecution that ultimately landed before the US Supreme Court.
The president-elect could be emboldened by the Supreme Court’s ruling in July which granted former presidents expansive immunity from prosecution for acts taken in the White House and explicitly put off-limits any alleged conduct involving his discussions with the Justice Department.
That included his efforts use the Justice Department to conduct sham election fraud investigations as part of his bid to stay in power.
The conservative-majority Supreme Court sent the case back to US District Judge Tanya Chutkan to determine which of the other allegations in the indictment, if any, could move forward to trial.
In response, Mr Smith’s team last month filed a 165-page brief laying out new evidence to persuade the judge that the actions alleged in the indictment were taken in Mr Trump’s private capacity as a candidate — not as commander-in-chief — and therefore can remain part of the case. Mr Trump’s lawyers are scheduled to file their response later this month.
Whatever Judge Chutkan rules is expected to be the subject of another appeal to the Supreme Court, meaning a possible trial would be likely to be a year or more away.
In New York, meanwhile, Mr Trump is fighting to overturn his felony conviction and stave off a potential prison sentence for falsifying business records related to a 130,000-dollar hush money payment to adult film actress Stormy Daniels just before the 2016 election. It is the only one of his criminal cases to go to trial.
A judge is expected to rule next week on whether to uphold or throw the verdict in the wake of the US Supreme Court’s July ruling that presidents have broad protections from prosecution.
Judge Juan M Merchan has said he will issue a ruling on Mr Trump’s dismissal request on November 12. The judge has pencilled in November 26 for sentencing, “if necessary”. Punishments range from a fine or probation to up to four years in prison.
Though Mr Trump technically has no authority as president to shut down a state-level prosecution like the one in New York, his victory calls into question that case as well as a separate pending case in Fulton County, Georgia, charging him with plotting to subvert that state’s election in 2020.
