Special counsel evaluating 2 federal cases against Trump post-election

By Eric Tucker and Alanna Durkin Richer

Nov. 6, 2024 2:42 PM PT

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

Smith charged Trump last year with plotting to overturn the results of the 2020 presidential election and illegally hoarding classified documents at his Mar-a-Lago estate. But Trump’s election victory means that the Justice Department believes he can no longer face prosecution in accordance with department legal opinions meant to shield presidents from criminal charges while in office.

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

By moving to wind down the cases before the inauguration in January, Smith and the Justice Department would be averting a potential showdown with Trump, who said as recently as 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 prosecutions that once carried the potential for felony convictions and prison sentences.

NBC News first reported Smith’s plans.

Smith’s two cases charge Trump in a conspiracy to undo the election results in the run-up to the Capitol riot, and with illegally retaining top-secret records at his Mar-a-Lago estate in Florida and obstructing FBI efforts to recover them. He was appointed to the position in November 2022 by Atty. Gen. Merrick Garland.

The classified documents case has been stalled since July when a Trump-appointed judge, Aileen Cannon, dismissed it on grounds that Smith was illegally appointed. Smith has appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals, where the request to revive the case is pending. Even as Smith looks to withdraw the documents case against Trump, he would seem likely to continue to challenge Cannon’s ruling on the legality of his appointment given the precedent such a ruling would create.

In the 2020 election interference case, Trump was scheduled to stand trial in March in Washington, where more than 1,000 of his supporters have been convicted of charges for their roles in the Capitol riot. But the case was halted as Trump pursued his sweeping claims of immunity from prosecution that ultimately landed before the U.S. Supreme Court.

Trump could be emboldened by the Supreme Court’s ruling in July, which granted former presidents expansive immunity from prosecution for acts taken in the White House and explicitly put off-limits any alleged conduct involving Trump’s discussions with the Justice Department. That included his efforts to use the Justice Department to conduct sham election fraud investigations 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 of the other allegations in the indictment, if any, could move forward to trial.

In response, Smith’s team last month filed a 165-page brief laying out new evidence to persuade the judge that the actions alleged in the indictment were taken in Trump’s private capacity as a candidate — not as head of the executive branch — and therefore can remain part of the case. Trump’s lawyers are scheduled to file their response this month.

In New York, meanwhile, Trump is fighting to overturn his felony conviction and stave off a potential prison sentence for falsifying business records related to a $130,000 hush money payment to porn actor Stormy Daniels just before the 2016 election. It is the only one of his criminal cases to go to trial.

A judge is expected to rule next week on whether to uphold or toss the verdict in the wake of the U.S. Supreme Court’s July ruling that presidents have broad protections from prosecution.

Judge Juan M. Merchan has said he will issue a ruling on Trump’s dismissal request on Nov. 12, one week after election day. The judge has penciled in Nov. 26 for sentencing, “if necessary.” Punishments range from a fine or probation to up to four years in prison.

Though Trump technically has no authority as president to shut down a state-level prosecution like the one in New York, his victory nonetheless calls into question that case as well as a separate pending case in Fulton County, Ga., charging him with plotting to subvert that state’s election in 2020.

Tucker and Richer write for the Associated Press.