WASHINGTON — Special Counsel Jack Smith is weighing how to bring down the two federal cases against Donald Trump before the president-elect takes office, in light of the Justice Department’s longstanding policy that sitting presidents cannot be prosecuted, a person familiar with the matter said Wednesday.

Smith accused Trump last year of plotting to overturn the results of the 2020 presidential election and illegally hoarding classified documents at his Mar-a-Lago estate. But Trump’s electoral defeat over Kamala Harris It means the Justice Department believes it can no longer face prosecution under the department’s legal opinions intended to protect presidents from criminal charges while they are in office.

The person familiar with Smith’s plans was not authorized to discuss the matter by name and spoke on condition of anonymity to The Associated Press.

By taking steps to close the cases before the January inauguration, Smith and the Justice Department would be avoiding a potential confrontation with Trump, who said as recently as last month that he would fire Smith “within two seconds” of taking office. It would also mean Trump would enter the White House without the legal cloud of federal criminal prosecutions that once carried the potential for felony convictions and prison sentences.

Smith’s plans were first reported by NBC News.

Smith’s two cases accuse Trump of conspiring to overturn the election results in the run-up to the Capitol riot, and of withholding top-secret records at his Mar-a-Lago estate in Florida and obstructing FBI efforts to recover them. . He was appointed to the position in November 2022 by Attorney General Merrick Garland.

The classified documents case has been stalled since July when a Trump-appointed judge, Aileen Cannon, dismissed it on the grounds that Smith was illegally appointed. Smith has appealed to the Atlanta-based 11th U.S. Circuit Court of Appeals, where the request to revive the case is pending. Even as Smith seeks to drop the documents case against Trump, it seems likely that he will continue to challenge Cannon’s ruling on the legality of his appointment, given the precedent such a ruling would create.

In the 2020 election interference case, Trump was scheduled to stand trial in March in Washington, where more than 1,000 of his supporters have been convicted of charges for their role in the Capitol riot. But the case ground to a halt as Trump pursued his sweeping claims for immunity from prosecution that eventually reached the U.S. Supreme Court.

Trump may feel emboldened by the Supreme Court’s ruling in July, which granted former presidents broad immunity from prosecution for events held at the White House and explicitly prohibited any alleged conduct related to Trump’s conversations with the Justice Department. That included his efforts to use the Justice Department to conduct bogus voter fraud investigations as part of his bid to stay in power.

The conservative-majority Supreme Court returned the case to U.S. District Judge Tanya Chutkan to determine which of the indictment’s other allegations, if any, could advance to trial.

In response, Smith’s team submitted a 165-page brief last month. present new evidence to persuade the judge that the actions alleged in the indictment were taken in Trump’s private capacity as a candidate, not as commander in chief, and therefore can remain part of the case. Trump’s lawyers are scheduled to file their response later this month.

Meanwhile, in New York, Trump could try to take advantage of his newly acquired status as president-elect in an effort to sideline or eliminate his conviction for a serious crime and avoid a possible prison sentence.

Trump has been fighting for months to overturn the May 30 verdict, which involved a $130,000 hush payment to porn star Stormy Daniels just before the 2016 election. It is the only one of his criminal cases to go to trial. .

Considered a private citizen, his imminent return to the White House could force a court to intervene and prevent the unprecedented spectacle of potentially locking up a former and future president.

Trump’s lawyers have not disclosed their plans. Before the election, lawyers were rebuffed in an attempt to move the case from state court to federal court, where it could be resolved more easily. Now they are appealing.

Judge Juan M. Merchán has said he will decide next Tuesday whether to uphold or overturn the verdict following the U.S. Supreme Court’s July ruling that presidents have broad protections against prosecution.

The judge has set the date of November 26 to hand down the sentence, “if necessary.” Penalties range from a fine or probation to four years in prison.

Although Trump technically does not have the authority as president to close a state-level process like the one in New York, his victory calls that case into question. as well as a separate pending case in Fulton County, Georgia accusing him of conspiring to subvert that state’s elections in 2020.

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Associated Press writer Michael R. Sisak in New York contributed to this report.