Special Counsel Is Said to Be Planning to Pursue Trump Cases Past the Election


The special counsel Jack Smith plans to pursue his two criminal cases against former President Donald J. Trump through the election and even up until Inauguration Day if Mr. Trump wins the presidential race, according to a person familiar with Mr. Smith’s thinking.

Mr. Smith believes that under Justice Department regulations, his mandate as special counsel and his authority to keep the cases going do not depend on a change of administration and extend until he is formally removed from his post, the person said.

As a practical matter, that means that the special counsel’s office is prepared to push forward for as long as possible on the two indictments it has filed against Mr. Trump. One of those, brought in Washington, has accused the former president of plotting to subvert the 2020 election. The other, filed in Florida, has charged Mr. Trump with holding on to a trove of highly sensitive classified documents after he left office and then obstructing the government’s repeated efforts to retrieve them.

Mr. Smith’s decision to keep the cases going, reported earlier by The Washington Post, comes as a landmark Supreme Court ruling on executive immunity this week has effectively postponed the election interference case until after voters go to the polls in November.

At the same time, Judge Aileen M. Cannon, who is overseeing the classified documents case in Florida, has declined to set a trial date as she grapples with an ever-expanding constellation of legal issues and court hearings.

A spokesman for Mr. Smith declined to comment about his plans for the two cases.

It is not unusual that a special counsel like Mr. Smith would seek to continue prosecuting cases under his command even after a change of presidential administrations. The Justice Department regulations governing special counsels give prosecutors like him day-to-day independence from the attorneys general who appointed them.

The special counsel John H. Durham, for example, was put in place by Attorney General William P. Barr during the Trump administration to scrutinize the Justice Department’s inquiry into connections between Russia and Mr. Trump’s 2016 campaign. Attorney General Merrick B. Garland then allowed Mr. Durham to continue his work well after Mr. Barr and Mr. Trump were out of office.

In a similar vein, one of Mr. Smith’s deputies told Judge Cannon in March that even if a trial were to be held a month or two before Election Day, it would not violate a Justice Department policy against conducting legal proceedings too close to an election — a provision known as the 60-day rule.

The deputy, Jay I. Bratt, asserted that the policy prohibited federal prosecutors from bringing new charges directly ahead of an election, but did not stop them from pushing forward with an indictment that had already been filed.

Still, enormous attention has been focused on the question of when Mr. Trump’s federal cases might finally go to trial, largely because he could order them to be dropped if they were postponed until after the election and he regained the White House.

While Justice Department lawyers believe they are authorized to pursue criminal charges against a president-elect, the prospect would push the cases into unknown legal territory and would almost certainly trigger a significant pushback from Mr. Trump.

Mr. Trump’s lawyers would no doubt seek to postpone the cases, perhaps until he was no longer in office. Ultimately, the decisions on such requests would be made by the judges overseeing the cases — Judge Cannon in Florida and Judge Tanya S. Chutkan in Washington.

Prosecutors across the country have faced challenges in seeking accountability for Mr. Trump.

The state election subversion case filed against Mr. Trump in Georgia was put on hold for months after an appeals court there decided to consider whether Fani T. Willis, the district attorney of Fulton County who filed the indictment, had a conflict of interest stemming from a romantic relationship she had with one of her deputies.

And on Tuesday, state prosecutors in Manhattan agreed to delay Mr. Trump’s sentencing for his conviction on 34 felony charges of falsifying business records to cover up a sex scandal that threatened to derail his 2016 presidential campaign.

The sentencing was originally scheduled for July 11, but Mr. Trump’s lawyers asked to push it back as they challenge the guilty verdicts based on the Supreme Court’s ruling on executive immunity.



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