Justice Department officials have been evaluating how to wind down the two federal criminal cases against President-elect Donald Trump before he takes office to comply with long-standing department policy that a sitting president can’t be prosecuted, two people familiar with the matter tell NBC News.
The latest discussions stand in contrast with the pre-election legal posture of special counsel Jack Smith, who in recent weeks took significant steps in the election interference case against Trump without regard to the electoral calendar.
But the sources say DOJ officials have come to grips with the fact that no trial is possible anytime soon in either the Jan. 6 case or the classified documents matter — both of which are mired in legal issues that would likely prompt an appeal all the way to the Supreme Court, even if Trump had lost the election.
Now that Trump will become president again, DOJ officials see no room to pursue either criminal case against him — and no point in continuing to litigate them in the weeks before he takes office, the people said.
“Sensible, inevitable and unfortunate,” said former federal prosecutor Chuck Rosenberg, an NBC News contributor…
How Trump’s legal jeopardy has unfolded over the past year, in terms of both the criminal charges and his sweeping election victory, is unprecedented.
The sources said it will be up to Smith to decide exactly how to unwind the charges and many questions remain unanswered. Could the prosecutions resume after Trump leaves office or would they be time-barred? What happens to the evidence? What about the two other defendants charged with helping Trump hide classified documents? Will the special counsel write a report, as special counsels usually do?