Special prosecutor Jack Smith intends to step down before President-elect Donald Trump takes office and is discussing a mechanism to drop the federal prosecution against him with Justice Department leadership, a DOJ official familiar with the discussions said.
Trump has threatened to fire Smith, but Smith expects to be gone before Trump takes office.
Discussions between Smith and DOJ leaders extend beyond Trump’s criminal cases to questions about what to do with other defendants in the classified documents case, as well as the special counsel’s office and what happens to its budget and staff.
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Smith must prepare a report on his work for State’s Attorney Merrick Garland. It is unclear whether the timing of Smith’s departure will be delayed if he has to submit his report to the intelligence community for approval, according to people briefed on the discussions.
Smith is working to complete the report before Trump takes office, as Garland would have to approve it and decide whether to make any of it public, said one person familiar with the discussions.
Trump and his allies have repeatedly threatened to fire and prosecute Smith’s team. In October, the president-elect said he would use presidential powers to end the Smith investigation and vowed to fire Smith “within two seconds.”
As president, Trump benefits from protections from prosecution that he did not have as a civilian.
A longstanding Justice Department policy says a sitting president cannot be prosecuted for crimes, and a Supreme Court ruling this summer found that Trump enjoys “absolute” immunity from prosecution for actions he took within his basic constitutional powers as president.
Before leaving, Smith will have to decide how to end the two criminal cases he has brought against Trump.
In Florida, Smith appealed Judge Aileen Cannon’s decision to dismiss the classified documents case, ruling that Smith was unconstitutionally appointed as a special prosecutor and that the funding of his office also violated the law.
And in Washington, DC, Smith’s team is advancing a criminal case alleging Trump orchestrated a plot to overturn the 2020 election following the Supreme Court’s ruling on presidential immunity.