(WASHINGTON) — Special counsel Jack Smith is in active talks with senior leadership at the Justice Department evaluating ways he can end his prosecutions of President-elect Donald Trump, sources familiar with the matter told ABC News.
The decision is based on longstanding Department of Justice policy that a sitting president cannot face criminal prosecution while in office, sources said.
It is unclear as of today how Smith’s prosecutors will approach dismissing both the federal election subversion case in Washington, D.C., and their ongoing appeal of Judge Aileen Cannon’s dismissal of the classified documents case.
Trump has vowed to fire Smith “within two seconds.”
“We got immunity at the Supreme Court. It’s so easy. I would fire him within two seconds. He’ll be one of the first things addressed,” Trump said on a call into the “Hugh Hewitt Show” on Oct. 24.
But due to Justice Department policy of not prosecuting a president, a firing is unneeded.
Smith was appointed to his position by Attorney General Merrick Garland in November 2022 to investigate Trump and his allies’ efforts to overturn the 2020 election as well as Trump’s alleged unlawful possession of highly classified documents he took from his time in the White House.
On June 8, 2023, Smith indicted Trump on charges he unlawfully retained classified documents and obstructed the government’s efforts to retrieve them. Trump pleaded not guilty to the charges in a federal court in Florida.
On Aug. 1, 2023, Trump was indicted on four felony counts related to his efforts to overturn the results of the 2020 election. Trump also pleaded not guilty in federal court to those charges.
Both cases were thrown into disarray by the Supreme Court’s decision earlier this summer giving presidents partial immunity against prosecution.
The Jan. 6 case was sent back to a lower court, while Cannon, a Trump nominee, dismissed the classified documents case, ruling Smith’s appointment as special counsel was unconstitutional because he was not appointed by the president or confirmed by Congress.
ABC News’ Ivan Pereira contributed to this report.
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