The United States Department of Justice (DOJ) officials were evaluating ways to wind down the two federal criminal cases against President-elect Donald Trump before he takes office on January 20.
This is to comply with long-standing department policy that a sitting president can’t be prosecuted, two people familiar with the matter have disclosed to NBC News.
The latest move sharply contrasts the pre-election legal posture of special counsel Jack Smith, who took significant steps in the election interference case against Trump without regard to the electoral calendar.
The sources said it will be up to Smith to decide exactly how to unwind the charges, raising questions as to whether the prosecution would resume after Trump leaves office or they would be time-barred, and also what would be the fate of the two other defendants charged with helping Trump hide classified documents.
The sources who pleaded anonymity have, however, said that DOJ officials have come to grips with the fact that no trial is possible anytime soon in either the January 6 case or the classified documents matter.
Both cases are entangled in legal complications that could potentially lead to an appeal reaching 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 sources said.
“Sensible, inevitable, and unfortunate,” said former federal prosecutor Chuck Rosenberg, an NBC News contributor.
At the same time, Trump’s legal team was weighing its next steps on how to resolve the outstanding federal cases in his favour now that he is president-elect.
Trump’s New York criminal case presents different challenges with a felony conviction and sentencing hearing already scheduled for November 26.
The immediate goal of Trump’s legal team is to get that postponed indefinitely or otherwise dismissed.
The Georgia election interference case against Trump remains tied up on appeals over ethical issues surrounding the district attorney.
“The American people have re-elected President Trump with an overwhelming mandate to ‘Make America Great Again’,” Trump campaign spokesman Steven Cheung said in a statement.
“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,” Cheung added.
The DOJ’s thinking on Trump’s federal cases came from a 2,000 memo by the Justice Department’s Office of Legal Counsel, which affirmed a Watergate-era conclusion that prosecuting a sitting president would “unduly interfere in a direct or formal sense with the conduct of the presidency.”
“In light of the effect that an indictment would have on the operations of the executive branch, ‘an impeachment proceeding is the only appropriate way to deal with a President while in office,’” the memo concluded, quoting the earlier conclusion.
The practical reality of Trump’s electoral victory Tuesday is that he is unlikely to ever face legal consequences concerning the serious federal criminal charges brought against him by career Justice Department prosecutors working with career FBI agents.
LEADERSHIP recalls that in the case accusing Trump of conspiring to illegally overturn the 2020 election, he is charged with conspiracy to defraud the United States, obstruction of an official proceeding, and conspiracy against rights.
In the classified documents case, he is charged with willful retention of national defense information, conspiracy to obstruct justice, lying to investigators, and withholding documents in a federal investigation.
