Trump criminal cases brought by Jack Smith set to be closed before he enters White House

The two federal criminal cases against Donald Trump are likely to be wound down before he gets into the White House, according to reports hours after his crushing election victory over Kamala Harris.

Special Counsel Jack Smith is in talks with the Justice Department to end the January 6 and classified documents prosecutions, NBC News reported.

The move would confirm the DOJ is sticking with the precedent that no sitting president can be prosecuted.

It’s an enormous blow for Smith who ramped up the cases in the final months of the campaigns and has spent almost three years and more than $35million in taxpayer funds trying to bring the 78-year-old to trial. 

Trump still faces sentencing in the New York hush money trial next month and the election interference case in Georgia headed by District Attorney Fani Wills has been beset by a slew of problems.

Trump faces four charges in federal court in Washington accusing him of spreading false claims of election fraud to try to block the collection and certification of votes following the 2020 election, which Trump lost to Democrat Joe Biden.

Trump asked federal courts to grant him presidential immunity, which delayed the DC case for months, although the federal judge overseeing the case is still deciding how much Trump is actually covered by presidential immunity for his efforts to overturn his 2020 election loss.

Since Trump will only be sworn into office on Inauguration Day on January 20, prosecutors still technically have weeks to prosecute him if they wanted to.

But just like earlier efforts, they would be vulnerable to challenges and appeal. 

‘The ball’s in DOJ’s court. I think in the next 48 to 72 hours we’re going to hear something,’ said a source close to Trump’s defense. ‘The DOJ does not want to be caught up in a situation where they’re litigating something that is pointless.’

Smith had also charged Trump with unlawfully holding onto classified documents at his Mar-a-Lago estate in Florida after his first term ended in 2021 and obstructing efforts by the U.S. government to retrieve the records.

Florida-based U.S. District Judge Aileen Cannon, who was nominated to the bench by Trump, dismissed all charges in July after finding that Smith was improperly appointed to the role and did not have the authority to bring the case.

The ruling brought an abrupt halt to the case, ensuring there would be no trial before the presidential election. 

Smith’s team is appealing the ruling, but Trump’s vow to fire Smith ‘within two seconds’ upon taking office likely signals the end of the case.

Former President Donald Trump was facing 88 criminal charges at the start of the year

 But even if it extended to the time Trump took office, he could shut it down. 

With Republicans seizing control of the Senate, Trump is not expected to have difficulty confirming his cabinet officials, with Sen. Marco Rubio (R-Fla.) already pointing to his mandate and saying he deserves to bring in his own people.

The moves by DOJ come after a year of extraordinary legal developments, set in motion in part by the DOJ’s decision to take its time before bringing charges.

Then, Smith undertook a hectic effort to advance cases on multiple fronts all while election deadlines loomed.

Trump made political hay out of the mutliple prosecutions, arguing he was a victim of ‘lawfare’ and ‘lunatic’ prosecutors. 

A key factor in the situation is a decades-old memo by the DOJ’s Office of Legal Counsel.

‘The Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions,’ it said.

It doesn’t mention the presidential transition period, although Trump’s team argues that the Presidential Transition Act enumerates presidential authorities that would bring in the same protections.

Further strengthening Trump’s posture is the Supreme Court’s decision in the January 6th case that established presidential ‘immunity’ from prosecution while in office, with lower courts still sorting through what conduct is and is not protected.