DOJ cases against Trump to ‘wind down,’ special counsel Jack Smith to be removed ahead of second White House term: report

In an October radio interview, Trump vowed to fire special counsel Jack Smith "within two seconds" of entering the White House for a second term if Smith hadn’t already left his post. "He may not have that opportunity," Fox News reported. "The DOJ, where Jack Smith works, cannot prosecute a sitting president. Fox News is told that Jack Smith will be gone from his post as special counsel, meaning the cases will be gone before Trump takes the oath of office at noon on January 20."

Two people familiar with the matter told NBC News that DOJ officials are weighing how to wind down the two federal cases before he takes office, as a longstanding department policy states that a sitting president can’t be prosecuted.

Smith is heading two cases against Trump at the federal level. The first relates to January 6, with filing deadlines being set in the case for November and December. The second is the Mar-a-Lago documents case, in which Trump was alleged to have illegally taken classified documents when he left office. That case was dismissed by Judge Aileen Cannon and Smith has been attempting to appeal the decision.

Politico reported that Trump’s attorneys are expected in the January 6 case to ask Judge Tanya Chutkan to call off the filing deadlines, and in the case of Mar-a-Lago, Smith’s appeal is unlikely to advance before Inauguration Day.

The pending state-level case is that of the Georgia 2020 election case brought forth by Fulton County District Attorney Fani Willis. The case has been on an extended pause as Willis faces a hearing before the Georgia Court of Appeals on December 5 on whether she will remain on the case. Willis came under fire earlier in the year after it was revealed that she had a romantic relationship with a prosecutor hired for the case, Nathan Wade, and questions regarding conflicts of interest arose.

"Now, the outcome of that appeal is almost beside the point," Politico reported. Even if the case is allowed to resume, Trump can seek to have the charges tossed or placed on hold while he serves as president under presidential immunity.

"And many legal experts, citing the principle that national interests prevail over state interests, believe the courts will never allow a state-level prosecutor like Willis to pursue criminal charges against a sitting president," Politico added. Even if Willis or her successor attempts to revive the case after Trump leaves the White House, it would be hard to prosecute a nearly decade-old case.

Trump has been convicted in one case, the Manhattan falsified business records case brought forth by DA Alvin Bragg. His sentencing has been delayed multiple times, the latest being to November 26. His lawyers are expected to argue against sentencing in the middle of Trump’s presidential transition, and Judge Juan Merchan has yet to weigh in on presidential immunity in the case.

If Trump is sentenced in November and sent to prison, that sentence likely would not begin until after he leaves the White House in 2029, Politico reported. If the sentence does not include a prison term, but instead something like a home confinement sentence, Trump’s lawyers are likely to seek the delay of that sentence and argue that it would affect his ability to serve.

There are also three civil judgments against Trump, amounting to more than half a billion dollars, and a fourth civil case pending against him. The outlet noted that there is no prohibition against collecting private civil damages from a president, however, Trump’s team could argue that continuing with the lawsuits could affect his ability to serve.

Trump has appealed the decisions in the civil fraud case brought forth by New York Attorney General Letitia James, and the decisions in the E Jean Carroll cases against him. The pending case against Trump was brought forth by police officers and members of Congress related to January 6, suing Trump for damages.