Justice Department officials are evaluating how to close the two federal criminal cases against President-elect Donald Trump before he takes office to comply with the department’s long-standing policy that a sitting president cannot be prosecuted, two people familiar with the matter said. NBC News.
The latest discussions contradict the legal position taken before the election by 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 sources say Justice Department officials have come to grips with the fact that no trial is possible anytime soon for either the Jan. 6 case or the classified documents — both of which are mired in legal issues that will likely lead to appeals down the road. To the Supreme Court, even if Trump loses the election.
Now that Trump is president again, Justice Department officials see no room to pursue either of the criminal cases against him — and no point in continuing to prosecute them in the weeks before he takes office, the people said.
“Plausible, inevitable, and unfortunate,” said former federal prosecutor Chuck Rosenberg, an NBC News contributor.
Attorney General Merrick Garland speaks at the Department of Justice on September 27. Chip Somodevilla/Getty Images
How Trump’s legal risks have unfolded over the past year, both in terms of criminal charges and his landslide election victory, is unprecedented.
Sources said it is up to Smith to decide exactly how to dismiss the charges and there are still many unanswered questions. Can trials resume after Trump leaves office, or will the statute of limitations expire? What happens to the evidence? What about the other defendants accused of helping Trump hide secret documents? Will the private investigator write a report, as private consultants typically do?
Sources say that all these issues require study and research.
At the same time, Trump’s legal team is weighing his next steps on how to resolve the pending federal cases in his favor now that he is the projected winner of the election. The ultimate goal is to completely eliminate all federal and state cases — and strategic advocacy is the best way to accomplish that mission, according to a person familiar with the discussions.
For example, if Trump’s side moves again in court to dismiss charges in Washington related to election interference, the Justice Department could use its legal response to explain its position on not moving forward with the case.
Trump’s criminal case in New York presents different challenges with a felony conviction and sentencing hearing scheduled for November 26. The immediate goal of Trump’s legal team is to postpone this indefinitely or reject it.
The Georgia election interference case against Trump remains tied up in appeals over ethics issues surrounding the district attorney.
“The American people re-elected President Trump with an overwhelming mandate to Make America Great Again,” Trump campaign spokesman Stephen Cheung said in a statement. He added: “It is now abundantly clear that Americans want to put an immediate end to the use of our judicial system as a weapon.” So that we can, as President Trump said in his historic speech last night, unite our country and work together for the good of our nation.”
Special Counsel Jack Smith in Washington, D.C., in June 2023. Chip Somodevila file/Getty Images
The Justice Department’s thinking on Trump’s federal cases stems from a 2000 memo from the Justice Department’s Office of Legal Counsel, which affirmed the Watergate-era conclusion that prosecuting a sitting president would “unjustifiably directly or formally interfere with the conduct of the president.” “. presidency.”
“Given the impact of impeachment on the operations of the executive branch, impeachment is the only appropriate way to deal with a president while he is in office,” the memo concluded.
The practical reality of Trump’s election victory on Tuesday is that he is unlikely to ever face legal consequences in connection with the serious federal criminal charges brought against him by Justice Department prosecutors working with career FBI agents.
Some commentators said the accusations were arguably more serious than the behavior that occurred in the Watergate scandal, which cost Richard Nixon the presidency and exiled him from politics.
In the case of accusing Trump of conspiring to illegally overturn the 2020 elections, he is accused of conspiring to defraud the United States, obstructing official proceedings, and conspiring against rights.
In the classified documents case, he was charged with intentionally withholding national defense information, conspiracy to obstruct justice, lying to investigators, and withholding documents in a federal investigation.
“The idea that you can win elections to avoid justice is very inconsistent with my expectations for our legal system and our politics as well,” said Joyce Vance, a former US attorney and NBC News contributor. “But the voters have spoken, and this is where we are.”
She added that it was never certain that Trump’s conviction would be up to the jury.
“What bothers me deeply is that he avoided the essential part of American justice — allowing the jury to make the decision, based on the evidence.”
For more on this story, tune into “NBC Nightly News with Lester Holt” tonight at 6:30pm ET/5:30pm Central or check your local listings.
Correction (November 6, 2024, 8 p.m. ET): An earlier version of this article misspelled the last name of a Trump campaign spokesman. It’s Stephen Cheung, not Chung.
