Special counsel Jack Smith taking steps to wind down federal cases against Trump

Donald Trump started this year fighting two federal prosecutions that threatened to send him to prison. But he will end it free and clear of his most significant criminal legal problems.

With his resounding victory at the polls, and a longstanding Justice Department policy against prosecuting a sitting president, the key question is not if, but when, prosecutors move to dismiss or delay his federal election interference case in Washington, D.C.

Trump recently said he would fire special counsel Jack Smith “within two seconds” after he returned to the White House. Now, that won’t be necessary to bring his federal criminal troubles to an end.

Smith is taking steps to end both federal cases against Trump before the president-elect takes office, according to a source familiar with the Justice Department deliberations.

1. What are the outstanding cases the federal government has lodged against Trump?

A grand jury in Washington indicted Trump this year on four felony charges in connection with his effort to cling to power in 2020, culminating in the violent siege on the U.S. Capitol on Jan. 6, 2021.

Judge Tanya Chutkan had set a trial date for March 2024, but that date came and went, after the Supreme Court accepted the case and ultimately handed Trump significant immunity from prosecution for official actions he took in the White House.

The judge is just now beginning to consider what parts of the prosecution’s case amount to official acts, and which are private conduct of a person seeking rather than holding office.

The Justice Department has appealed in a separate criminal case against Trump that accuses the former president of hoarding classified documents at his Mar-a-Lago resort and refusing to the return them to the FBI.

Judge Aileen Cannon, who was appointed to the bench by Trump, dismissed the documents case on July 15, the first day of the Republican National Convention this year, reasoning that the way the special counsel had been appointed violates the Constitution. The Justice Department has been seeking review by a higher court, the U.S. Court of Appeals for the Eleventh Circuit.

2. What does Trump’s election victory mean for these cases?

They’re on life support and likely to end even before the inauguration in January.

On the campaign trial, Trump vowed to fire the special counsel, Smith, on his first day in office. But Trump would not need to dismiss Smith or order any new DOJ officials to fire Smith in order to end the criminal prosecutions.

In 2000, a lawyer in the Justice Department’s Office of Legal Counsel, which advises the federal government on its powers and boundaries, concluded that a sitting president could not be indicted or prosecuted because that “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

Administrations led by Republicans and Democrats have adopted the DOJ policy against prosecuting presidents.

The Florida case involving classified documents is a bit more complicated. DOJ could file notice with the appeals court that it is abandoning the appeal. But that case involves two other defendants, Walt Nauta and Carlos de Oliveira.

Dismissing the appeal outright would also mean walking away from cases that prosecutors built against those two defendants, Trump’s personal aide and the property manager at Mar-a-Lago.

What’s more, the federal government may have a broader interest, because Cannon’s reasoning could upend the way special prosecutors have been appointed for decades.

But one DOJ veteran who wasn't authorized to speak publicly told NPR that Cannon's ruling would not be considered binding precedent, so the stakes could be lower.

Former Attorney General William Barr says voters have evaluated the allegations against Trump — and decisively rendered their own verdict.

"Further maneuvering on these cases in the weeks ahead would serve no legitimate purpose and only distract the country and the incoming administration from the task at hand," Barr said in a written statement first reported by the Guardian.

3. What happens to the special counsel, Jack Smith?

Special counsels are obligated to file a report on their actions with the attorney general when they finish their work. The current attorney general, Merrick Garland, has pledged to make most of those reports public.

If Smith’s written report is not complete by Inauguration Day, it will be up to new DOJ leaders to decide its fate.

Mike Davis, a Trump ally, told a conservative interviewer this week that the attorney general “is probably President Trump’s most important appointment.”

Davis told the interviewer that Smith’s entire office should be fired and said, “After today, Jack Smith, you're going to be the hunted: legally, politically and financially. So lawyer up, buddy.”

4. Trump also faced criminal charges in two states, New York and Georgia. How will the election reshape those cases?

A jury in New York this year convicted Trump on 34 criminal charges related to bookkeeping for an alleged hush money payment to an adult film actress shortly before the 2016 election.

Justice Juan Merchan scheduled a hearing for Nov. 12 to assess how the Supreme Court's immunity decision might affect that case. It's not clear whether the criminal sentencing for Trump set for Thanksgiving week will occur. Trump's lawyers may seek to stop it given the election results.

The case against Trump in Fulton County, Ga., over alleged election interference, has been on pause for months while a higher court considers possible conflicts of interest involving District Attorney Fani Willis. There's a hearing scheduled in that appeal Dec. 5.

It, too, could be overtaken by events — and a strategy of delay and deflection by Trump's lawyers that appears to have succeeded beyond imagination.