Special counsel Jack Smith and his team are set to resign before President-elect Donald Trump assumes office, according to a source familiar with the matter. Smith’s office has been assessing the best way to conclude its work on two ongoing federal criminal cases against Trump, as the Justice Department maintains that a sitting president cannot be charged with a crime.
Under Justice Department regulations, Smith’s office must submit a confidential report to Attorney General Merrick Garland, who can decide whether to make it public.
In late October, Trump stated that if re-elected, he would quickly fire Smith, claiming he would do so “within two seconds” and that he had “immunity at the Supreme Court.” The new attorney general could also choose not to release Smith’s final report.
Before Trump’s re-election last week, Smith’s team continued their investigation into Trump’s alleged election interference. After Trump’s victory, a federal judge overseeing the case gave Smith’s office until December 2 to determine how to proceed.
Last year, Trump was indicted by the Justice Department for attempting to overturn the 2020 election results. However, the case faced delays due to appeals from Trump’s legal team and a Supreme Court ruling in July that granted him immunity for certain actions taken as president. In August, Smith’s team revised the indictment, removing evidence deemed off-limits by the Court, and a grand jury issued an updated indictment.
The Justice Department also charged Trump in Florida for allegedly hoarding classified documents after leaving office and refusing to return them. However, a federal judge dismissed the case in July, claiming Smith’s appointment was unlawful, and the case remains under appeal.
When Trump was first indicted, Smith vowed to move swiftly toward trial, but Trump’s legal team successfully delayed proceedings in both cases, while Trump criticized Smith at rallies and online. The election-interference case in Washington focused specifically on Trump, but it remains unclear whether any unnamed co-conspirators mentioned in the indictments may face legal consequences. There is no Justice Department policy preventing the prosecution of alleged criminal conspirators based on their connection to an incoming president or the potential for a pardon.
