Special counsel Jack Smith winding down Trump’s federal cases

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, now President-elect Trump has vowed to fire the special counsel, Jack 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.”