Special counsel Jack Smith, whose two federal prosecutions against Donald Trump are winding down in the wake of his target’s presidential election victory, plans on relinquishing his appointment by the time the president-elect is inaugurated in January.
Smith intends to finish his work and leave before Trump can fulfill his promise of firing the federal prosecutor “within two seconds” of taking office, anonymous sources told the New York Times. The timeline of his departure is unclear, considering his work targeting the former president has not been made public in a report yet. Prosecutors and FBI agents on his team were reportedly told to leave over the course of the next few weeks.
Trump’s reelection victory last week quickly spelled trouble for Smith, as his cases hinge on Trump’s status as a former president. Under Justice Department policy, a sitting president cannot be prosecuted for crimes.
Smith’s case involving the former president’s alleged election interference in 2020 was paused shortly after Trump won the election. District of Columbia judge Tanya Chutkan granted Smith’s request to suspend all deadlines in that case, and ordered he provide an update on next steps by December 2.
Meanwhile, the case in which Trump was charged with mishandling classified documents after leaving office is likely squashed after Florida judge Aileen Cannon ordered its dismissal in July. The Trump-appointed judge’s decision faces an appeal in federal court in Atlanta.
In July, the Supreme Court ruled that presidents have absolute immunity for official acts committed while in office, but not for personal conduct, and returned the case to lower courts to determine what constitutes an official act.
In his final weeks on the job, Smith’s office is expected to file a report summarizing his investigations and decisions as obligated by Justice Department regulations. The department requires the report to explain why the special counsel filed certain charges while not pursuing other charges he considered.
The report would be directed to U.S. attorney general Merrick Garland, who appointed Smith as special counsel in November 2022. Garland has said he intends to release such a report to the public, though it will be somewhat redacted to comply with department rules.
It remains unclear whether that document will be published before the Biden administration formally hands power to Trump on January 20.
If Smith finishes the report, Garland could either release the findings or defer the release to the second Trump administration. In the event of the latter option, it’s unlikely the findings would be made public.
Prior to the election, Trump told conservative commentator Hugh Hewitt that he would promptly fire Smith if reelected.
“We got immunity at the Supreme Court,” Trump said last month. “It’s so easy. I would fire him within two seconds. He’ll be one of the first things addressed.” He added that he plans on suing the prosecutor over the 2022 FBI raid of Mar-a-Lago.
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