The U.S. Department of Justice is reportedly discussing with Special Counsel Jack Smith regarding the potential winding down of two federal cases against President-elect Donald Trump. These cases involve allegations of mishandling classified documents and attempts to obstruct power transfer following the 2020 presidential election.
Smith was charged by Trump last year, but the Justice Department has a long-standing policy against prosecuting sitting presidents-a guideline that would apply if Trump takes office anew this January.
During his campaign, Donald Trump said he would fire Smith “within two seconds” if he wins re-election- reflecting the hostile relations between the former president and the special counsel.
The discussions center on the legal precedents of not indicting a sitting president and the need for continuity of government from the outgoing Biden Administration to Trump. Not pursuing the federal cases before Trump’s swearing-in could avoid a confrontation between the new president and the Justice Department.
Attorney General Merrick Garland appointed Smith in November 2022 to take over two major indictments against Trump: one relating to conspiring to overturn the results of the 2020 election in connection with the January 6 riot at the Capitol and charges connected to retaining classified documents at Trump’s Mar-a-Lago estate in Florida and obstructing FBI efforts to retrieve them.
The classified documents case is currently stalled in the appeals court. A judge dismissed it because Smith was improperly appointed. Smith has appealed this decision, and it remains under review.
Meanwhile, the prosecution of election interference is abeyance after a U.S. Supreme Court ruling that presidents enjoy some immunity from criminal charges related to official acts. Smith’s team revised the indictment in August to add language making clear the purported acts were committed by Trump as a political candidate. The defense attorneys and prosecutors are now debating whether the charges can stand.
