WASHINGTON — The special counsel overseeing the federal criminal cases against Donald Trump is preparing to drop the prosecutions of the president-elect before he is sworn in, according to a Justice Department official.
Special counsel Jack Smith is evaluating how to wind down two federal cases against Trump in order to comply with a department policy that a sitting president can’t be prosecuted, said the official, who asked to remain anonymous speaking about non-public matters. Smith may still seek to prosecute two of Trump’s co-defendants in one of the cases.
Smith charged Trump with illegally trying to remain in office after the 2020 election, which he lost to President Joe Biden. In a separate case, Trump was charged with illegally retaining classified documents and obstructing federal efforts to retrieve them after he left the White House.
A Justice Department policy put in place in 2000 states that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Several questions remain unanswered about how the prosecutions will be brought to a close, including whether Trump’s co-defendants in the classified documents case can still be prosecuted.
The classified documents case already was dismissed by a federal judge in Florida who ruled that Attorney General Merrick Garland didn’t have authority to appoint and fund a special counsel. The department is currently appealing the ruling in an effort to preserve the institutional ability of the agency to appoint special counsels in the future.
Smith may choose to leave the special counsel position when Trump takes office but it wasn’t clear whether he would leave the Justice Department or move to another position. If Smith remains in the department, Trump could seek to have him fired when he becomes president.
The mechanics of how the cases will wind down will become clear in the coming days as court deadlines approach.
The special counsel’s office is due to make a filing in the 11th U.S. Circuit Court of Appeals on Nov. 15 with regard to the classified documents case.
Trump’s lawyers have several filings due on Nov. 21 before a federal court in Washington regarding the election interference case.