Justice Department and special counsel in talks about how to wind down Trump prosecutions

Washington — The Justice Department and special counsel Jack Smith’s office are engaged in active discussions about how to wind down the ongoing federal prosecutions against President-elect Donald Trump, according to two people familiar with the talks.

At the center of the discussions is the Justice Department’s longstanding policy against prosecuting a sitting president and the need to enable a smooth transition to a second term in the White House for Trump, the sources said.

Regulations governing the special counsel dictate that the upper echelons of the Justice Department, including possibly Attorney General Merrick Garland, are to be consulted on major decisions in an investigation overseen by a special counsel. Smith’s office declined to comment.

Garland appointed Smith in November 2022 to take over the Justice Department’s investigations involving Trump.

The president-elect was indicted on federal charges in two separate cases brought by Smith last year, the first involving his alleged mishandling of sensitive government records and the second stemming from his purported efforts to subvert the transfer of power after the 2020 presidential election.

The former president pleaded not guilty to all charges and accused Smith of mounting a politically motivated prosecution aimed at assisting President Biden’s — and then Harris’ — campaign against him.

In the prosecution involving government documents, which was brought in South Florida, Smith and his team claimed Trump unlawfully held onto dozens of records bearing classification markings after leaving the White House in January 2021 and worked with two staffers, who were charged alongside him, to impede the Justice Department’s investigation. The staffers, aide Walt Nauta and Mar-a-Lago property manager Carlos De Oliveira, also pleaded not guilty.

The former president faced 40 charges, but they were all dismissed earlier this year when the judge overseeing the case, Aileen Cannon, ruled Smith’s appointment was unconstitutional. Smith appealed the ruling, and both sides have submitted filings to the U.S. Court of Appeals for the 11th Circuit on the issue. 

In the second case, brought in Washington, D.C., prosecutors claimed Trump mounted an illegal scheme to hold onto power for a second term after losing the 2020 election to Mr. Biden. Proceedings were paused for months, though, as Trump sought to have the charges dismissed on the grounds that presidential immunity shielded him from prosecution.

The Supreme Court weighed in on the matter in July, ruling that former presidents cannot face charges arising from official actions taken while in the White House, and the case resumed before U.S. District Judge Tanya Chutkan in August.

Smith secured a superseding indictment against Trump that narrowed the allegations against him to comply with the Supreme Court’s decision, and the two sides are in the midst of debating whether the charges can still stand.

Melissa Quinn

contributed to this report.