Special counsel Jack Smith’s office is preparing for retaliation if Trump wins

CNN
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A year after filing historic charges against former President Donald Trump, prosecutors in special counsel Jack Smith’s office are playing back legal options and preparing for retaliation if Trump returns to the White House.

Trump has called Smith a “sick puppy” and vowed to fire him “within two seconds” — which would effectively end two criminal cases over the former president’s handling of classified documents and efforts to overturn the 2020 election. The Justice Department is also not in able to prosecute a sitting president.

But until Inauguration Day in January, Smith would have time to weigh his options on questions the department has never had to confront before.

An early hurdle is whether the Justice Department’s Office of Legal Counsel considers a president-elect to be subject to the same legal protections from prosecution as a sitting president. That guidance would determine the next course of action, people briefed on the matter told CNN.

More than a half-dozen people close to the special counsel’s office or other top Justice Department officials told CNN they believe Smith does not want to close shop until ordered to or pushed out by Trump.

“He’s not going to be the one to say, ‘I’m going to fold the tent,'” a former Justice Department official with knowledge of Smith’s approach told CNN.

The prosecutors are also bracing for a personal toll, including the possibility of GOP-led congressional investigations into their work and internal professional reviews that could be launched by the Justice Department at Trump’s behest.

Many have also braced for right-wing instigated fury against them, knowing that was a possible outcome even two years ago when they joined Smith’s team. The special counsel’s office has held harassment briefings, particularly related to online doxing, cyber security and stalking. Smith has his own detail of multiple security guards, and others on his team have taken steps to protect their safety.

Meanwhile, the office is already down to a skeleton crew as some prosecutors have left for other jobs in the Justice Department. Others are also considering leaving, including going to big defense firms, where Justice Department lawyers often wait out the revolving door of Democratic or Republican administrations.

The pay in these private sector jobs is often more lucrative and can cover personal legal bills if they end up having to hire their own lawyers.

In the event that Trump wins, employees briefed on the special counsel’s office will be allowed to go back to their home departments within the Justice Department. Unlike political appointees like Smith, they are unable to be fired at the direction of the president.

But former prosecutors in the Trump case may face a difficult workplace once Trump appoints heads of the department.

While closing his office before the inauguration has always been an option, sources believe Smith and his core team are likely to keep both Trump cases alive in court as long as they can, knowing they could run headlong into Trump’s wrath .

Smith and his team are appealing Judge Aileen Cannon’s decision in July to dismiss the classified documents case against Trump and his two co-defendants, in which she ruled that Smith did not have the authority to prosecute the case. The department is appealing her dismissal in a broader defense of its ability to use special counsel to isolate politically sensitive investigations. The matter will likely go to the Supreme Court if the appeal continues.

Cannon’s dismissal of the case was not particularly demoralizing to Smith’s office, sources say, in part because some of the prosecutors realized early on that Cannon would likely be a bad move for them since she did not get the case until 2023.

Still, the prosecution team surrounding the Florida case was dwindling even before Cannon closed the case. A prosecutor many believed would have tried the case, David Raskin, left Smith’s office before Cannon dismissed the case to oversee Hamas-related and other national security prosecutions under his own longtime close colleague, now Assistant Attorney General for National Security Matt Olsen .

In Washington, Smith’s prosecutors are pressing forward in the criminal case alleging that Trump orchestrated a conspiracy to overturn the 2020 election after the Supreme Court ruled that Trump had immunity for certain official acts performed as president.

In recent weeks, the special counsel’s office filed its 252-page letter in an attempt to convince the trial judge and potentially the Supreme Court that Trump’s actions are not immune from prosecution.

That move — a sweeping public presentation of evidence with sharp language about Trump’s intent and culpability — was an example of Smith’s no-nonsense approach, some of the sources said. Trump’s lawyers have criticized the approach in court as out of step with typical court procedures and unfair to Trump as an accused.

The immunity card may be the most extensive documentation of the Jan. 6 federal criminal case that the public will ever see.

Inside the Justice Department, top officials are watching the election closely, knowing they will have to confront unprecedented legal questions if Trump wins.

If Vice President Kamala Harris wins, the choices for the department and the special counsel’s office could be much simpler. The two criminal cases would continue. Individual prosecutors would have to decide whether to stick with the case long enough to take Trump to trial, which could take years.

Attorney General Merrick Garland has long maintained that the two federal criminal cases against Trump, once charged, were in the hands of the justice system.

“The case is now in the hands of the trial judge to determine when a trial will take place,” he told CNN in January.

In the event that Trump wins, one question will be what to do in court during the presidential transition. The Justice Department has long maintained that it would not prosecute a sitting president while he is in office.

Smith and Justice officials will almost certainly have to seek advice from the department’s office of legal counsel on whether a president-elect can be prosecuted, which could lead the DOJ to set policy for future presidencies as well, the people briefed on the matter said. .

In the Jan. 6 case, prosecutors could also ask federal district judge Tanya Chutkan to put the case on hold — essentially putting it on hold — in the months before Trump takes office.

Then, on January 20, when Trump would be inaugurated, the procedure could be complicated. The Jan. 6 case against Trump is in the hands of Chutkan and approved by a grand jury—two functions of democracy that are beyond the total control of the executive branch and the Justice Department. Prosecutors will have to ask Chutkan to dismiss the case.

And while the judge ultimately likely will, Chutkan may not immediately shut it down and may ask for additional filings, arguments and information.

“Just think of the chaos of it all — he (Trump) would love that,” said one of the former Justice Department officials.

CNN’s Evan Perez contributed to this report.