WASHINGTON — 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 on Smith's plans to 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.
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 election last week, Smith and his team had continued moving forward in their election interference case against him. 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 indicted Trump last year for his efforts to overturn the 2020 presidential election. But Smith's case was hampered early on by appeals from Trump's legal team and then in July by the Supreme Court's ruling that he has immunity for some of his actions as president. In August, Smith's team retooled the indictment — stripping it of certain evidence the high court said was off limits — and a federal grand jury returned a superseding indictment in the case.
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.
Smith on Wednesday asked the U.S. Court of Appeals for the Eleventh Circuit to hit pause on his appeal of the classified documents case.
He asked the court to postpone a Friday deadline in the case and give prosecutors until Dec. 2 to allow them time to “assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy,” in light of Trump's return to the White House.
The move mirrors a request that Smith already made in the federal election interference case, which a judge granted.
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.
