Special counsel Jack Smith and his team plan to resign before President-elect Donald Trump takes office, a source familiar with the matter said.
Smith’s office has been evaluating the best path for winding down its work on the two outstanding federal criminal cases against Trump, as the Justice Department’s longstanding position is that it cannot charge a sitting president with a crime.
The New York Times first reported that Smith will step down.
The looming question in the weeks ahead is whether Smith’s final report, detailing his charging decisions, will be made public before Inauguration Day. The special counsel’s office is required under Justice Department regulations to provide a confidential report to Attorney General Merrick Garland, who can choose to make it public.
Smith’s federal criminal cases against Trump were upended by the election, as the Justice Department’s longstanding policy is that sitting presidents can’t be charged with crimes.
In late October, Trump said in a radio interview that he would immediately fire Smith as special counsel if re-elected. “It’s so easy — I would fire him within two seconds,” Trump said, adding that he got “immunity at the Supreme Court.” The next attorney general could decide not to release Smith’s final report as well.
Before Trump’s re-election last week, Smith and his team had continued moving forward in their election interference case against Trump. After Trump’s victory, however, a federal judge overseeing the case agreed to give the special counsel’s office until Dec. 2 to decide how to proceed.
The Justice Department had also charged Trump in Florida with allegedly hoarding classified documents after he left office and then refusing to give them back. But a federal judge dismissed the case in July, saying Smith’s appointment was illegal. That case remains on appeal.
When the former president was first indicted, Smith said he would move quickly to trial, but Trump’s legal team successfully sought to delay in both cases while then-candidate Trump routinely lambasted Smith at his rallies and online.
The election-interference case in Washington was narrowly focused on Trump, but an open question remains as to whether any unnamed co-conspirators referenced in the indictments face future legal jeopardy.
There’s no Justice Department norm for alleged criminal conspirators to avoid being prosecuted because they are connected to an incoming president, or because that future president is likely to pardon them.
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