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Jimmy Williams
Special counsel Jack Smith is assessing steps to wind down the two federal cases against President-elect Donald Trump before his January inauguration, following longstanding Justice Department guidelines that prohibit prosecuting sitting presidents, according to a person familiar with the matter. The cases, one involving allegations of Trump’s attempt to overturn the 2020 election and the other his retention of classified documents, could be halted to prevent a confrontation with Trump, who has promised to dismiss Smith swiftly upon taking office.
Smith’s cases, brought in 2022, accuse Trump of conspiring to block the certification of the 2020 election results, leading up to the Jan. 6 Capitol riot, and of unlawfully keeping classified documents at his Mar-a-Lago residence. Trump has faced legal battles on multiple fronts, but his recent election victory over Vice President Kamala Harris shifts the legal landscape, making prosecution uncertain due to a Justice Department policy shielding presidents from criminal charges while in office.
NBC News first reported Smith’s plans to scale back the cases, which were filed under the direction of Attorney General Merrick Garland. Smith’s decision, if finalized, would mean Trump could enter the White House without facing immediate federal criminal prosecutions.
Trump’s Legal Landscape and DOJ Policies
The policy against prosecuting a sitting president means Trump, once inaugurated, would be immune from federal prosecution on these cases, despite his pending trials. One of the cases, involving classified documents, has faced delays since July when Judge Aileen Cannon, a Trump appointee, dismissed it, arguing Smith’s appointment was unlawful. Smith is challenging this decision in the 11th U.S. Circuit Court of Appeals.
Meanwhile, Trump’s 2020 election interference case was set for trial in March 2024, but his immunity claims have halted proceedings, with the matter now pending before the U.S. Supreme Court. Trump’s defense hinges partly on a July Supreme Court ruling, which broadly shielded former presidents from prosecution related to official actions, even covering discussions Trump held with the DOJ about election fraud. Judge Tanya Chutkan will rule on whether other accusations in the indictment, not directly connected to official duties, can still be tried.
State-Level Convictions and Implications
Trump also faces state convictions, particularly in New York, where he was found guilty in May of falsifying business records linked to a hush money payment to adult film star Stormy Daniels. The only case to reach a verdict against Trump, it could see him sentenced to prison as early as November 26 unless overturned. Trump’s lawyers have appealed to remove the case to federal court, though Judge Juan M. Merchan will determine next week if the conviction stands following the Supreme Court’s recent guidance on presidential immunity.
In Fulton County, Georgia, Trump faces additional charges related to alleged election interference. Though a sitting president cannot dismiss state charges, Trump’s pending inauguration raises questions about whether state-level prosecutions will proceed or face delays.
Broader Implications of Winding Down Federal Cases
If Smith moves forward with winding down the cases, it would represent a pivot for the DOJ, as no previous sitting president has faced prosecution while in office. Smith’s action would also reflect the balancing act between DOJ policies, accountability, and Trump’s imminent authority as president-elect. Smith’s team has argued in recent court filings that Trump’s actions should be viewed as those of a candidate rather than a president, meaning they should not fall under immunity.
Despite Trump’s legal challenges, his political victory shifts the stakes, underscoring the extraordinary implications of prosecuting a president-elect, which could ultimately impact the DOJ’s approach to handling both federal and state-level charges.
