Special counsel evaluating how to wind down two federal cases against Trump after presidential win

WASHINGTON — Special Prosecutor Jack Smith is evaluating how to wind down the case two federal cases against Donald Trump before the president-elect takes office, in light of the Justice Department’s longstanding policy that says sitting presidents cannot be prosecuted, a person familiar with the matter said Wednesday.

Smith accused Trump of it last year making plans to overturn the results of the 2020 presidential election And illegally hoarding classified documents at his Mar-a-Lago estate. But Trump’s election defeat of Kamala Harris means that the Justice Department believes he can no longer be prosecuted in accordance with the department’s legal opinions designed to protect presidents from criminal prosecution while in office.

The person familiar with Smith’s plans was not authorized to discuss the matter by name and spoke to The Associated Press on condition of anonymity.

By wrapping up the cases before the inauguration in January, Smith and the Justice Department could avoid a potential confrontation with Trump. said last month that he would fire Smith “within two seconds” of taking office. It would also mean Trump would enter the White House without the legal cloud of federal criminal charges that once carried the potential for felony convictions and prison sentences.

NBC News first reported Smith’s plans.

In Smith’s two cases, Trump is accused of conspiring to overturn the election results in the lead-up to the Capitol riot, as well as keeping top secret data at his Mar-a-Lago estate in Florida and obstructing the FBI’s efforts to recover it. He was appointed to this position in November 2022 by Attorney General Merrick Garland.

The secret documents case has been stalled since July when a Trump-appointed judge, Aileen Cannon, rejected it on the grounds that Smith had been illegally appointed. Smith has appealed to the Atlanta-based 11th US Circuit Court of Appeals, where the request to revive the case is pending. Even as Smith moves to drop the documents case against Trump, it appears he will likely continue to challenge Cannon’s ruling on the legality of his nomination, given the precedent such a ruling would set.

In the 2020 election interference case, Trump was scheduled to go on trial in March in Washington, where more than a thousand of his supporters have been convicted for their role in the Capitol riot. But the case was dropped as Trump pursued his sweeping claims of immunity from prosecution, which ultimately ended up in the U.S. Supreme Court.

Trump could be strengthened by the Supreme Court’s ruling in July. which granted former presidents extensive immunity from prosecution for actions committed in the White House and explicitly prohibits any alleged conduct related to Trump’s discussions with the Justice Department. That included his efforts to use the Justice Department to conduct sham investigations into election fraud as part of his bid to stay in power.

The conservative-majority Supreme Court sent the case back to U.S. District Judge Tanya Chutkan to determine which, if any, of the other charges in the indictment could go to trial.

In response to this Smith’s team filed a 165-page brief last month with new evidence to convince the judge that the actions mentioned in the indictment were taken in Trump’s personal capacity as a candidate – and not as commander in chief – and therefore can remain part of the case. Trump’s lawyers will file their response later this month.

In New York, meanwhile, Trump could try to leverage his new status as president-elect in an effort to sideline or destroy political power. his felony conviction and avoid possible prison time.

Trump has been fighting for months to overturn the May 30 verdict, in which $130,000 in hush money was paid to porn actor Stormy Daniels just before the 2016 election. It is the only one of his criminal cases to go to trial.

If tried as a private citizen, his impending return to the White House could force a court to intervene and avoid the unprecedented spectacle of potentially jailing a former and future president.

Trump’s lawyers have not disclosed their plans. Before the election, attorneys were rebuffed in an attempt to move the case from state court to federal court, where it could be more easily disposed of. They are now appealing.

Judge Juan M. Merchan has said he will rule next Tuesday on whether the verdict should be upheld or thrown out, in the wake of the U.S. Supreme Court ruling in July that presidents enjoy broad protection from prosecution.

The judge entered a motion for sentencing on Nov. 26, “if necessary.” Penalties range from a fine or probation to a maximum of four years in prison.

While Trump does not technically have the authority as president to halt a state-level prosecution like the one in New York, his victory nevertheless puts that case into question. as well as a separate ongoing case in Fulton County, Georgia He is accused of plotting to undermine that state’s 2020 elections.

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Associated Press writer Michael R. Sisak in New York contributed to this report.