There were officials of the Department of Justice NBC News is evaluating how to drop two federal criminal cases against President-elect Donald Trump before he takes office to comply with longstanding department policy that a sitting president cannot be prosecuted, two people familiar with the matter told NBC News.
The latest debate contrasts with the pre-election legal stance of Special Counsel Jack Smith, who in recent weeks has taken significant steps in the election interference case against Trump without regard to the election calendar.
But sources say DOJ officials have come to grips with the fact that neither the January 6 incident nor the classified documents matter is likely to be brought to trial soon — both are mired in legal issues that could lead to an appeal. Even if Trump loses the election, to the Supreme Court.
Now that Trump will be president again, DOJ officials see no room to pursue a criminal case against him, and there is no point in continuing to litigate them weeks before he takes office.
“Clever, inevitable and unfortunate,” said former federal prosecutor Chuck Rosenberg of NBC News.
The way Trump’s legal threat has unfolded over the past year, both in terms of both criminal charges and his landslide election victory, is unprecedented.
Smith will decide how to dispose of the charges, sources said, and many questions remain unanswered. Can prosecutions resume after Trump leaves office, or are they timed? What happens to the evidence? What about the other two defendants charged with helping Trump hide classified documents? Will Smith write a report, as special counsels typically do?
Sources say that all these issues require investigation and research.
At the same time, Trump’s legal team is weighing its next steps in how to resolve pending federal cases in favor of the former president, who is the projected winner of the election. The ultimate goal is to eliminate all federal and state jobs entirely — the strategic challenge is how best to accomplish that task, according to a person familiar with the discussions.
For example, if the Trump side goes back to court to dismiss allegations of election meddling in Washington, then the Justice Department could use its legal response to explain its position not to move forward with the case.
Trump’s New York criminal case presents a different set of challenges to his arraignment and sentencing, scheduled for Nov. 26. The immediate goal of Trump’s legal team is to have it postponed indefinitely or otherwise dismissed.
The Georgia election meddling case against Trump remains tied to ethics appeals involving the District Attorney.
The DOJ’s thinking about Trump’s federal cases dates back to 2000 memo Approved by the Legal Counsel of the Department of Justice a According to the Watergate-era conclusion, prosecution of a sitting president would “improperly interfere directly or formally with the exercise of presidential authority.”
“Given the impact of impeachment on the functioning of the executive branch, ‘impeachment proceedings are the only appropriate way to deal with the president while he is in office,'” the memo quoted a previous finding.
The practical reality of Trump’s election victory Tuesday is that he will never face legal consequences for serious federal criminal charges brought against him by career Justice Department prosecutors working with career FBI agents.
Some commentators have said the charges are more serious than the Watergate scandal that cost Richard Nixon his presidency and forced him out of politics.
In the case that accuses Trump of conspiracy to illegally overturn the 2020 election, he is charged with conspiracy to defraud the United States, obstruction of official process and conspiracy to violate rights.
In the classified documents case, he is charged with withholding national defense information, conspiracy to obstruct justice, lying to investigators and withholding documents from a federal investigation.
“The idea that you can win an election to escape justice completely defies my expectations of our legal system and our politics,” said Joyce Vance, a former U.S. attorney and NBC News reporter. “But the voters have spoken and here we are.”
He added that it was never a foregone conclusion that Trump would be convicted — that would be a jury trial.
“What bothers me so much is that he has avoided a fundamental part of American justice – letting a jury decide based on the evidence.”