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Prosecutors are discussing how to drop two federal criminal cases against Donald Trump as he prepares to return to the White House, in a significant victory for the former president who has faced a series of legal battles since his first term in office.
Jack Smith, the special counsel appointed by US attorney-general Merrick Garland to oversee two cases against Trump, “is examining how to wind down” the proceedings “before he takes office to comply with long-standing department policy that a sitting president can’t be prosecuted”, a Department of Justice official familiar with the matter said.
Smith has brought two cases against Trump: one accusing him of interfering with the 2020 general election and another alleging he mishandled classified documents.
The federal cases were among the most serious legal challenges faced by Trump. He has been charged in two additional criminal cases in state court. The first, in Georgia, accused him and others of meddling in the 2020 polls. The other was brought by the Manhattan district attorney, alleging he falsified business records to conceal “hush money” payments to a porn actor with whom he had an affair. He was convicted on all 34 felony counts in the Manhattan case earlier this year.
Trump’s campaign did not immediately respond to a request for comment.
The DoJ’s move would comport with its long-standing policy against “the indictment or criminal prosecution of a sitting president”, which “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions”, according to memos issued in 1973 and 2000.
Timing on the potential dismissal of the cases remains unclear. But there are two upcoming deadlines in both proceedings that may weigh on the decision. The DoJ is due to file a reply by November 15 with a court that is hearing its appeal against a federal judge’s dismissal of the documents case. Trump’s lawyers have a separate November 21 deadline in the elections case.
Trump’s election victory could deal a potentially fatal blow to all criminal cases against him. He is due to be sentenced on November 26 in the New York “hush money” case, but that would probably be postponed or otherwise delayed until after the next presidential election.
The Georgia proceedings have become bogged down as the district attorney who brought the case, Fani Willis, fights an attempt to disqualify her after it was discovered that she had a relationship with an outside attorney she had hired to help with the prosecution. Legal scholars say that Trump could ask the DoJ to file a lawsuit in federal court to pause that proceeding.