Justice Department officials have been evaluating how to wrap up 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 say who are familiar with the NBC News case.
The latest discussions stand in contrast to the pre-election legal stance of special counsel Jack Smith, who has made significant moves in the election interference case against Trump in recent weeks regardless of the election calendar.
But the sources say DOJ officials have come to grips with the fact that no trial is possible anytime soon in the Jan. 6 case or in the classified documents matter — both of which are embroiled in legal issues that are likely to reach higher profession would lead. to the Supreme Court even if Trump had lost the election.
With Trump running for president again, DOJ officials see no room to pursue either criminal case against him — and there is 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 peril has evolved over the past year, both in terms of criminal charges and his landslide election victory, is unprecedented.
The sources said it will be up to Smith to decide how exactly the charges will be dismissed and that many questions remain unanswered. Can the prosecutions resume after Trump leaves office, or are they time-barred? What happens to the evidence? What about the two other defendants accused of helping Trump hide classified documents? Will the special counsel write a report, as special counsels usually do?
The sources say all these issues require study and research.
At the same time, Trump’s legal team is considering its own next steps to resolve the outstanding federal cases in his favor now that he is the projected winner of the election. The ultimate goal is to have all federal and state cases completely wiped out — the strategic choice is how best to accomplish that task, according to a person familiar with the discussions.
For example, if the Trump side were to move again in court to dismiss the Washington charges related to election interference, the Justice Department could use its legal response to explain its position on not moving forward with those case.
Trump’s criminal case in New York presents several challenges, with a misdemeanor hearing and sentencing scheduled for November 26. The immediate goal of Trump’s legal team is to have it postponed indefinitely or otherwise dismissed.
The Georgia election interference case against Trump remains pending appeal over ethics issues surrounding the prosecutor.
“The American people reelected President Trump with an overwhelming mandate to make America great again,” Trump campaign spokesman Steven Chung said in a statement. “It is now abundantly clear that Americans want an immediate end to the weaponization of our justice system. so that, as President Trump said in his historic speech last night, we can unite our country and work together for the betterment of our nation.”
The DOJ’s position on Trump’s federal cases stems from a 2000 memo from the Justice Department’s Office of Legal Counsel, which reaffirmed the Watergate-era conclusion that a prosecution of a sitting president would be “in direct or formal sense would unduly interfere with the conduct of the presidency.”
“In light of the effect an indictment would have on the activities of the executive branch, ‘an impeachment proceeding is the only appropriate way to deal with a President while he is in office,’” the memo concluded, reiterating the previous conclusion was quoted.
The practical reality of Trump’s election victory Tuesday is that he is unlikely to ever face legal consequences related to the serious federal criminal charges brought against him by Justice Department prosecutors working with career FBI agents.
Some commentators have said the allegations were arguably more serious than the conduct in the Watergate scandal that cost Richard Nixon the presidency and left him banished from politics.
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 accused of intentionally withholding national defense information, conspiracy to obstruct justice, lying to investigators and withholding documents in a federal investigation.
“The idea that you could win an election to avoid justice goes so deeply against my expectations for our justice system and also for our politics,” said Joyce Vance, a former U.S. attorney and NBC News contributor. “But the voters have spoken, and that’s where we are now.”
She added that it was never a foregone conclusion that Trump would be convicted — that would be up to a jury.
“What bothers me so deeply is that he has avoided the essential part of American justice: letting a jury decide based on the evidence.”
For more on this story, watch “NBC Nightly News with Lester Holt” tonight at 6:30 PM ET/5:30 PM CT or check your local listings.
This article was originally published on NBCNews.com
