Special counsel Jack Smith plans to pursue two criminal cases against former President Donald J. Trump throughout the election and even through Inauguration Day if he wins the presidential election, according to a person familiar with his thinking.
Smith believes that under Justice Department rules, his role as special counsel and his authority to continue cases will be immune to changes in administration and will continue until he is formally removed from office, the people said.
In practical terms, that means the special counsel's office is prepared to move forward with the two indictments it has filed against Trump for as long as possible. One of the indictments, filed in Washington, accuses the former president of plotting to overturn the 2020 election. The other, filed in Florida, accuses Trump of hiding a trove of highly classified classified documents after he left office and then thwarting repeated attempts by the government to retrieve them.
As previously reported by The Washington Post, Smith's decision to continue the lawsuit comes after the Supreme Court handed down a landmark ruling on administrative immunity this week, effectively postponing the election interference lawsuit until the November vote.
Meanwhile, Judge Eileen M. Cannon, who is overseeing the Florida classified documents case, has declined to set a trial date as she grapples with a growing number of legal issues and court hearings.
A spokesman for Smith declined to comment on his plans for the two cases.
It is not unusual for special counsels like Smith to seek to continue prosecuting cases under their direction across presidential administrations, and Justice Department rules for special counsels give them routine independence from the attorneys general who appointed them.
Special Counsel John H. Durham, for example, was appointed by Attorney General William P. Barr during the Trump administration to review the Justice Department's investigation into ties between Russia and Trump's 2016 election campaign. Attorney General Merrick B. Garland allowed Durham to continue the investigation after Barr and Trump left office.
Similarly, one of Smith's aides told Judge Cannon in March that even if the trial were held a month or two before Election Day, it would not violate Justice Department policy prohibiting legal proceedings too close to an election — a provision known as the 60-day rule.
Vice President Jay I. Brat argued that while the policy bars federal prosecutors from bringing new charges so close to an election, it does not prevent them from moving forward with indictments already filed.
Still, there's a lot of attention on when Trump's federal lawsuit will ultimately go to trial, mainly because it could be delayed until after the election and Trump could be ordered to drop the suit if he returns to the White House.
Justice Department lawyers believe they have the authority to bring criminal charges against the president-elect, but doing so would take the case into uncharted legal territory and would almost certainly provoke strong opposition from Trump.
Trump's lawyers will likely seek a stay of the case until after he leaves office. Any decision on such a request would ultimately rest with the judges over the case, Judge Cannon of Florida and Judge Tanya S. Chutkan of Washington.
Prosecutors across the country are facing challenges in holding Trump accountable.
A state election interference lawsuit filed against Mr. Trump in Georgia had been on hold for months because the state's appeals court decided to consider whether the Fulton County district attorney who filed the indictment, Fani T. Willis, had a conflict of interest stemming from her romantic relationship with one of her deputy district attorneys.
And on Tuesday, state prosecutors in Manhattan agreed to delay sentencing for Trump, who was convicted on 34 felony counts of falsifying business records to cover up a sex scandal that threatened to derail his 2016 presidential campaign.
The verdict was originally scheduled for July 11, but Trump's legal team is challenging the conviction based on a Supreme Court ruling on administrative immunity and has asked for the verdict to be delayed.