Special counsel Jack Smith intends to step down before President-elect Donald Trump takes office and is discussing the mechanics of winding down the federal prosecutions against him with Justice Department leadership, a DOJ official familiar with the discussions said.
Trump has threatened to fire Smith, but Smith expects to be gone before Trump takes office.
The talks between Smith and DOJ leaders extend beyond Trump’s criminal cases to questions about what to do with other defendants in the classified documents case as well as the special counsel’s office and what happens to its budget and staff.
Smith is required to produce a report on his work for Attorney General Merrick Garland. It’s not clear whether the timing of Smith’s departure would be delayed if he has to submit his report to the intelligence community for approval, according to people briefed on the discussions.
Smith is working to complete the report before Trump takes office, as Garland would need to approve it and decide whether to release any of it publicly, one person familiar with the discussions said.
The New York Times first reported on the timing of Smith’s resignation plans.
Trump and his allies have repeatedly threatened to fire and prosecute Smith’s team. In October, the president-elect said he would use presidential powers to end Smith’s probe and promised to fire Smith “within two seconds.”
As president, Trump benefits from protections against prosecution that he didn’t have as a civilian. Longstanding Justice Department policy holds that a sitting president cannot be prosecuted for crimes, and a ruling from the Supreme Court this summer found that Trump enjoyed “absolute” immunity from prosecution for actions taken within his core constitutional powers as president.
Questions around next steps in Trump’s federal cases
Before his departure, Smith will have to decide how to end the two criminal cases he brought against Trump.
The Justice Department on Wednesday moved to pause its appeal seeking to revive the classified documents case against Trump and his two co-defendants — Walt Nauta and Carlos de Oliveira — while prosecutors discuss next steps.
Smith had appealed Judge Aileen Cannon’s decision to dismiss the case in Florida after she ruled that Smith was unconstitutionally appointed as special counsel and that the funding of his office also violated the law.
The department’s Wednesday filing to the 11th US Circuit Court of Appeals, which handles federal cases in Florida, said it needs more time “to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy.”
There is still some question whether the department would try to disentangle the portion of the classified documents case against Nauta and de Oliveira, who are private citizens, from the case against Trump himself.
The prosecutors say they plan to update the court on what they decide by December 2.
In a separate move, the department last week asked a trial-level court to put on hold the 2020 election interference case against Trump.
This story has been updated with additional details.
CNN’s Kaanita Iyer contributed to this report.
