Can special counsel Jack Smith actually be prosecuted?

House Judiciary Chairman Jim Jordan (R-Ohio) and Rep. Barry Loudermilk (R-Georgia) asked Jack Smith’s office to preserve all records of the historic classified document and election interference probes, a routine first step in congressional inquiries, law enforcement investigations and litigation, reported, reported the Washington Post.

Smith’s team included veteran national security prosecutors who had spent years at the Justice Department. They secured grand jury indictments charging Doanld Trump with hoarding classified documents after leaving the White House and obstructing government efforts to retrieve them, and illegally trying to overturn Biden’s 2020 election victory.

Since this week’s election, Smith has signaled that he plans to wind down the cases against Trump and focus on completing a final report to Attorney General Merrick Garland, rather than pushing ahead with the prosecutions until the inauguration and forcing a confrontation with the incoming administration.

Smith is assessing how he wants to proceed with the case now that Trump is expected to be sworn in as president on Jan. 20, the special counsel and his team told a federal judge in a filing Friday. Justice Department policy would not allow for the prosecution of a sitting president. U.S. District Judge Tanya S. Chutkan responded by granting Smith’s request to suspend all remaining deadlines in the case Friday.

Jordan and Loudermilk’s letter to Smith suggested that Smith’s office might respond to the election by purging records, warning, “The Office of Special Counsel is not immune from transparency or above accountability for its actions.” The lawmakers, both staunch Trump supporters, repeated an earlier request for Smith to turn over records about his communications with Garland, his hiring decisions and the court-approved search of Trump’s Mar-a-Lago estate in August 2022.

In its filing to Chutkan on Friday, Smith’s team said it needed to assess how to proceed with the case, which accused Trump of trying to interfere with the 2020 election results, now that he is returning to the White House.

Chutkan quickly granted that request and ordered prosecutors to file a report by Dec. 2 explaining how they want to proceed.

The case is still far from a potential trial, and Chutkan is determining what allegations in the superseding indictment may still be prosecuted after the Supreme Court ruled this summer that presidents enjoy broad immunity.

Smith’s options include preparing a final report for public disclosure or dismissing both cases so that they can be revived after Trump’s second term ends, said Barbara McQuade, a law professor at the University of Michigan and a former federal prosecutor.

If he terminates the criminal cases soon enough, Smith could deliver a final report detailing the findings of his two probes to Garland before Trump becomes the next president. A final report would allow Smith to “share with the public his evidence of Trump’s crimes,” McQuade said. “Members of Congress should be careful what they ask for.”

Smith could then resign as special counsel before Trump has a chance to make good on his promises to fire him.

Garland has previously said that he would make special counsel reports public if they reached his desk, though he has not indicated specifically what he would do if Smith gave him such a report now.

Were Smith to press forward into a Trump administration, the president or his attorney general could fire him and order the Justice Department to drop the prosecution.

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