Special counsel prosecutors will shut down their criminal cases against Donald Trump before he takes office, according to two people with direct knowledge of the matter, after his stunning victory against Kamala Harris meant they would not proceed to trial.
The move reflects the reality that the cases will not be completed before inauguration day. Once Trump returns to the White House, the special counsel’s office would be prohibited from pursuing further criminal actions under justice department policy.
The justice department has long known that if Trump won, the criminal cases – over Trump’s retention of classified documents and his efforts to overturn the 2020 election – would be finished because Trump’s attorney general would likely drop the charges.
But it is also understood to be a preemptive measure to ensure that Trump will not be able to order the dismissal of the special counsel, Jack Smith, as he had vowed to do if he takes office and Smith remained in his role.
That possibility had been relished by Trump’s close aides and advisers, who privately imagined Trump ordering Smith’s removal and his team having to vacate their office space in Washington.
The justice department is still examining how to wind down the cases, which are in different stages and are complicated. In particular, the department does not want the classified documents case, which was dismissed and currently under appeal, to go unchallenged.
Failure to pursue an appeal over the dismissal of the classified documents case on grounds that the special counsel himself was illegally appointed could set a problematic precedent and hamper the department’s ability to use special counsels in the future.
Trump launched his presidential campaign in 2022 under the cloud of an impending special counsel investigation. That investigation examined Trump’s retention of national security materials at his Mar-a-Lago club after he lost the 2020 presidential election.
He repeatedly told supporters at rallies and in public statements that he was running for his literal freedom, urging voters to return him to the presidency in part because the charges would only disappear if he was re-elected.
For months, Trump’s overarching legal strategy was to delay the criminal cases until after Tuesday’s election. His hope was that if he won, he could appoint a loyalist attorney general who would simply drop the prosecutions.
He was unsuccessful in delaying his New York criminal case tied to his efforts to influence the outcome of the 2016 election through an unlawful hush-money scheme, which resulted in his conviction on 34 felony counts. But his conviction barely moved the political needle.
The special counsel’s move to preemptively shut down the two federal cases comes as the former Trump attorney general William Barr in a statement urged federal and state prosecutors to end their cases against Trump.
“The American people have rendered their verdict on President Trump and decisively chosen him to lead the country for the next four years. They chose him to lead us with the full knowledge of the claims against him by prosecutors around the country,” Barr wrote.
“The attorney general and all the state prosecutors should do the right thing and help the country move forward by dismissing the cases.”
Read more of the Guardian’s 2024 US election coverage