By Steve Neavling
Special counsel Jack Smith is considering how to close the two federal cases against President-elect Donald Trump, adhering to the longstanding Justice Department policy that sitting presidents cannot be prosecuted, according to a source familiar with the situation, the Associated Press reports.
Smith charged Trump last year for allegedly trying to overturn the 2020 election results and for unlawfully storing classified documents at Mar-a-Lago. However, with Trump’s victory over Kamala Harris, the Justice Department believes he can no longer face prosecution while in office due to legal opinions protecting sitting presidents from criminal charges.
By winding down the cases before Trump’s January inauguration, Smith and the Justice Department would avoid a potential clash with Trump, who previously vowed to fire Smith upon taking office. This would also mean Trump would assume the presidency free of looming federal prosecutions that once carried the potential for severe penalties.
The classified documents case has been stalled since July when Judge Aileen Cannon, appointed by Trump, dismissed it over Smith’s appointment legality. Smith has appealed this decision to the 11th U.S. Circuit Court of Appeals, where it is pending. Meanwhile, Smith may continue to challenge Cannon’s ruling to avoid setting a broad precedent.
In the 2020 election interference case, Trump’s trial, originally set for March in Washington, was paused due to his claims of immunity, which reached the U.S. Supreme Court. The court’s ruling in July granted former presidents broad protections for actions taken while in office and sent the case back to Judge Tanya Chutkan for review. Smith’s team recently submitted evidence to argue that Trump’s actions were taken as a candidate, not as president, and should remain part of the case.
Meanwhile, Trump might leverage his status as president-elect to seek dismissal or expungement of his May 30 conviction in New York, involving a $130,000 payment to Stormy Daniels before the 2016 election. Although this case was tried when Trump was a private citizen, his return to the presidency may prompt legal action to avoid imprisoning a former and future president.
Judge Juan M. Merchan, who oversaw the trial, plans to rule next week on whether to uphold or dismiss the conviction in light of the Supreme Court’s July ruling on presidential immunity.
Sentencing, if required, is scheduled for Nov. 26, with possible outcomes ranging from a fine to four years in prison.
