Special prosecutor Jack Smith plans to continue his two criminal cases against former President Donald J. Trump until the election and even into Inauguration Day if Trump wins the presidential election, a source said.
Mr. Smith believes that his mandate as special counsel and his authority to pursue cases are not contingent on a changing of the guard under Justice Department rules and will only expire once he is formally removed from office, the source said.
In practice, that means the special counsel’s office is prepared to pursue the two criminal charges it has filed against Mr. Trump for as long as possible. One, filed in Washington, accuses the former president of plotting to undermine the 2020 election. The other, filed in Florida, accuses Mr. Trump of 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 continue the business, previously reported by The Washington Postcomes after the Supreme Court this week made a landmark ruling on executive immunity, effectively putting the election interference case on hold until voters go to the polls in November.
At the same time, Judge Aileen M. Cannon, who is handling the secret documents case in Florida, has declined to set a trial date, citing a mounting number of legal issues and hearings.
A spokesman for Mr Smith declined to comment on his plans for the two businesses.
It is not unusual for a special counsel like Mr. Smith to want to continue prosecuting cases under his command, even after a change of presidential administrations. The Justice Department’s regulations governing special counsels give prosecutors like him day-to-day independence from the attorneys general who appoint them.
For example, special counsel John H. Durham was appointed by Attorney General William P. Barr during the Trump administration to oversee the Justice Department’s investigation into Russia’s connections to Trump’s 2016 campaign. Attorney General Merrick B. Garland then allowed Durham to continue his work long after Barr and 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 take place a month or two before Election Day, it would not violate the Justice Department’s policy against conducting legal proceedings too close to the election — a provision known as the 60-day rule.
The associate judge, Jay I. Bratt, said the policy prohibited federal prosecutors from filing new charges immediately before the election, but did not prevent them from proceeding with charges that had already been filed.
Still, there’s a lot of focus on when Trump’s federal lawsuits might finally go to trial, largely because he could order them dropped if they’re delayed until after the election and Trump is back in the White House.
While Justice Department lawyers are confident they have the authority to bring criminal charges against a president-elect, the prospect would take the cases into uncharted legal territory and almost certainly draw significant opposition from Trump.
Trump’s lawyers would undoubtedly try to delay the cases, perhaps until he was no longer in office. Ultimately, 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 are facing challenges in bringing Mr. Trump to justice.
The Georgia election subversion case against Trump was put on hold for months after an appeals court there decided to consider whether Fani T. Willis, the Fulton County district attorney who brought the suit, had a conflict of interest because of a romantic relationship she had with one of her deputies.
And on Tuesday, Manhattan prosecutors agreed to delay Trump’s sentencing after he was found guilty of 34 felonies, including 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 Trump’s lawyers have requested a delay as they challenge the guilty verdicts based on the Supreme Court’s ruling on executive immunity.
