Washington — Special counsel Jack Smith is expected to have departed the Justice Department by the time President-elect Donald Trump takes office in late January, two sources familiar with his plans told CBS News, as he and his team make plans to wind down the two federal prosecutions against the incoming president.
By leaving before the start of Trump’s second term, Smith would keep the president-elect from firing him, as Trump has said repeatedly he plans to do. The special counsel is expected to issue a final report, as required by Justice Department rules, though it will likely be more historical than factual.
It’s unclear when the report will be submitted to Attorney General Merrick Garland and likely sent to Congress, as the attorney general has done with reports from other special counsels before they were made public. The New York Times first reported Smith’s plans to step down.
Smith was appointed by Garland two years ago to take over the Justice Department’s investigations into Trump: the first involving his handling of sensitive government documents after leaving office at the end of his first term; and the second related to an alleged scheme to subvert the transfer of power after the 2020 presidential election.
The special counsel brought charges last year against Trump as a result of both probes. The president-elect was charged with 40 counts related to the documents marked classified recovered from his South Florida resort, Mar-a-Lago, and his alleged attempts to interfere with the Justice Department’s investigation. He was also charged with four counts stemming from what prosecutors said was an unlawful attempt to overturn the results of the last presidential election.
Proceedings in the case related to the 2020 election were paused for several months as Trump pursued claims that he was shielded from federal prosecution by presidential immunity. The Supreme Court ruled in July that former presidents cannot face charges arising from official actions taken while in the White House.
The president-elect pleaded not guilty to all charges and denied any wrongdoing.
But Trump’s defeat of Vice President Kamala Harris last week is likely to bring both prosecutions to a close, and CBS News reported last week that the Justice Department and special counsel’s office are engaged in active discussions about how to wind down the cases.
The Justice Department has a longstanding policy against prosecuting a sitting president.
Smith last week asked the federal judge overseeing the case related to the 2020 election to cancel the current deadlines to allow he and his team more time to assess the “unprecedented circumstances” arising out of his election to a second term in the White House.
Smith told U.S. District Judge Tanya Chutkan the additional time was necessary to “determine the appropriate course going forward consistent with Department of Justice policy.”
Chutkan swiftly granted the request and ordered Smith to submit to her a report “indicating its proposed course for this case going forward” by Dec. 2.
While Smith’s final report is expected to be focused on the history of the cases, the public has gotten a look at the evidence collected by the special counsel and his investigators in court filings.
In the case related to the 2020 election, Chutkan made public last month a key legal brief submitted by Smith that provided an extensive look at the information prosecutors amassed in their case against Trump. And in the documents case, prosecutors included in numerous filings photos from the FBI that showed how Trump kept keepsakes alongside sensitive material in various places at Mar-a-Lago, as well as boxes stacked in a ballroom stage and in a bathroom next to a shower and toilet.
