Special Counsel Jack Smith and his team must resign before Trump takes office

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 how best to complete his work on the two outstanding federal criminal cases against Trumpbecause the Justice Department’s long-standing position is that it cannot charge a sitting president with a crime.

The New York Times first reported that Smith will resign.

The looming question in the coming weeks is whether Smith’s final report detailing his charging decisions will be made public before Inauguration Day. Under Justice Department regulations, the special counsel’s office is required to provide a confidential report to Attorney General Merrick Garland, who may choose to make it public.

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At the end of October, Trump said in a radio interview that he would fire Smith immediately as special counsel if re-elected. “It’s so easy – I would fire him in two seconds,” Trump said, adding that he “immunity in the Supreme Court.” The next attorney general could decide not to release Smith’s final report either.

Before Trump’s re-election last week, Smith and his team had moved forward in their election interference case against Trump. However, after Trump’s victory, a federal judge overseeing the case agreed to order the special counsel’s office… Dec. 2 to decide how to proceed.

The Ministry of Justice inTrump dictated last year for his efforts to overturn the 2020 presidential election. But Smith’s case was hampered early on by calls from Trump’s legal team and then by the Supreme Court in July this year rules that he has immunity for some actions he took as president. In August, Smith’s team reshaped the indictment — stripping it of certain evidence that the Supreme Court ruled off-limits and a federal grand jury has filed a superseding indictment in the case.

The Justice Department had also accused Trump in Florida of hoarding classified documents after he left office and then refusing to return them. But a federal judge dismissed the verdict the case in July, saying that Smith’s appointment was illegal. That case remains on appeal.

When the former president was first charged, Smith said he would go to trial soon, but Trump’s legal team successfully sought delays in both cases, with then-candidate Trump routinely criticizing Smith at his rallies and online .

The Washington election interference case focused solely on Trump, but an open question remains about whether any unnamed co-conspirators referenced in the indictments will face future legal jeopardy.

There is no Justice Department standard for alleged criminal conspirators to avoid being prosecuted because they are associated with a new president, or because that future president is likely to pardon them.