Smith weighs how to wind down Trump's federal cases

Special counsel Jack Smith is evaluating how to wind down the two federal cases against President-elect Trump following his Election Day victory, a move that would align with Justice Department policy barring the prosecution of sitting presidents.

Trump is facing charges for his actions leading up to Jan. 6 and for retaining classified documents in his Florida estate.

A Trump-led Justice Department was widely expected to move to withdraw the charges against Trump, but Smith’s team is discussing pulling back in the cases ahead of the inauguration.

Smith’s spokesperson declined to comment.

But the move comes as his team would undoubtedly be weighing a memo from DOJ’s Office of Legal Counsel (OLC) that advises against the criminal prosecution of a sitting president.

“The Department concluded that the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions,” the OLC, which helps craft the department’s policies, determined in a 1973 memo.

Trump’s legal team is giving Smith “breathing room” in the hopes he will end the cases without the president-elect forcing his hand, according to a source familiar with the discussions.

“The American people have re-elected President Trump with an overwhelming mandate to Make America Great Again. It is now abundantly clear that Americans want an immediate end to the weaponization of our justice system, so we can, as President Trump said in his historic speech last night, unify our country and work together for the betterment of our nation,” Trump campaign spokesperson Steven Cheung said in a statement.

Smith is prosecuting Trump in Washington, D.C., for conspiring to subvert the 2020 election results and in Florida for mishandling classified documents and obstructing the government’s efforts to retrieve them, spurring Espionage Act charges.

Trump pleaded not guilty and mounted a successful legal strategy to delay both until well after the election. The federal election case remains in battles over the extent Trump is immune from prosecution as a former president, while Smith for months has been appealing a federal judge’s dismissal of the documents case.

Trump has made clear he planned to fire Smith “within two seconds” of taking office, he said last month.

“He’ll be one of the first things addressed,” Trump said at the time.

Ella Lee and The Associated Press contributed.