The DOJ will settle Trump’s criminal cases before he takes office

Ministry of Justice officials have been is considering how to dispose of the two federal criminal cases against President-elect Donald Trump before he takes office to comply with longstanding department policy that a sitting president cannot be prosecuted, two people familiar with the matter told NBC News .

The latest discussions contrast with the pre-election legal stance of special counsel Jack Smith, who in recent weeks took significant steps in the election interference case against Trump without regard to the election calendar.

But the sources say DOJ officials have come to grips with the fact that no trial is possible anytime soon in either the Jan. 6 case or the classified documents case — both of which are tied up in legal issues that would likely prompt an appeal throughout the road. to the Supreme Court, even though Trump had lost the election.

Now that Trump is president again, DOJ officials see no room to pursue any of the criminal cases against him — and no point in continuing to litigate them in the weeks before he takes office, the people said.

“Sense, inevitable and unfortunate,” said former federal prosecutor Chuck Rosenberg, a contributor to NBC News.

How Trump’s legal peril has played out over the past year, both in terms of the criminal charges and his sweeping electoral victory, is unprecedented.

The sources said it will be up to Smith to decide exactly how to handle the charges, and many questions remain unanswered. Could prosecutions resume after Trump leaves office, or would they become time-barred? What happens to the evidence? What about the other two defendants accused of helping Trump hide classified documents? Will the special counsel write a report like special counsels usually do?

The sources say that all these issues require investigation and research.

At the same time, Trump’s legal team is weighing its own next steps for how to resolve the pending federal cases in his favor now that he is the expected winner of the election. The ultimate goal is to have all the federal and state cases completely wiped out — the strategic call is how best to accomplish that task, according to a person familiar with the discussions.

If, for example, the Trump side moved again in court to dismiss the election meddling charges in Washington, then the Justice Department could use its legal response to explain its position not to move forward with that case.

Trump’s criminal trial in New York presents different challenges, with a felony conviction and sentencing scheduled for Nov. 26. The immediate goal of Trump’s legal team is to have it postponed indefinitely or otherwise dismissed.

The Georgia election interference case against Trump remains tied up in appeals over ethics issues surrounding the district attorney.

The DOJ’s thinking on Trump’s federal cases dates back to the year 2000 note of the Justice Department’s Office of Legal Counsel, which confirmed a The Watergate-era finding that a prosecution of a sitting president would “improperly interfere in a direct or formal sense with the conduct of the presidency.”

“Given the effect that an impeachment will have on the operations of the executive branch, ‘an impeachment trial is the only appropriate way to deal with a president while in office,'” the memo concluded, citing the earlier conclusion.

The practical reality of Trump’s election victory on Tuesday is that he is unlikely to ever face legal consequences for the serious federal criminal charges brought against him by career Justice Department prosecutors working with career FBI agents .

Some commentators have said the charges were probably more serious than the conduct in the Watergate scandal that cost Richard Nixon the presidency and left him banished from politics.

In the case, which accuses Trump of conspiring to illegally overturn the 2020 election, he is charged with conspiracy to defraud the United States, obstruction of an official proceeding and conspiracy against rights.

In the classified documents case, he is charged with willful withholding of national defense information, conspiracy to obstruct justice, lying to investigators and withholding documents in a federal investigation.

“The idea that you could win an election to avoid justice just so deeply violates my expectations of our justice system and also of our politics,” said Joyce Vance, a former U.S. attorney and NBC News contributor. “But the voters have spoken and that’s where we are.”

She added that it was never a foregone conclusion that Trump would be convicted — that would be up to a jury.

“What bothers me so deeply is that he has avoided the essential part of American justice – to let a jury decide, based on the evidence.”

For more on this story, tune into “NBC Nightly News with Lester Holt” tonight at 6:30 PM ET/5:30 PM CT or check your local listings.