That the special prosecutor is preparing to shelve his two prosecutions against current President-elect Donald Trump is evident from report on Smith’s conversations with Justice Department leadership, as well as Smith’s motion this week asking the trial judge overseeing the Jan. 6 case to stay court deadlines. This movement was granted almost immediately by Judge Tanya Chutkan. In the filing, Smith called the circumstances of the case “unprecedented” and said he intends to file a report with the court by Dec. 2 explaining how he plans to proceed.

The problem for Smith is a DOJ policy that prohibits prosecuting a sitting president. This policy was the result of lawyers for Presidents Richard Nixon and Bill Clinton successfully arguing to the Justice Department that prosecuting the sitting head of the executive branch would violate the Constitution. While other countries can and do do it pursue their sitting government leaders and, although academics have questioned the binding power of a DOJ memo written by his Office of Legal Counsel, there is less than zero chance that Attorney General Merrick Garland will reverse this analysis, given his fear of appearing partisan.

That leaves Smith – and the DOJ – essentially two choices: They can dismiss the cases, or they can put them on hold until Trump is no longer president (again). Suspending the cases would be an exercise in futility since Trump will dismiss them as soon as he takes office. This would involve abandoning the call in progress. Firing of Judge Aileen Cannon of the classified documents affair — a rejection based on Cannon’s aberrant conclusion that the very appointment of the special prosecutor was unconstitutional. Abandoning an appeal against a poorly reasoned decision that jeopardizes the use of a special counsel would not normally be acceptable to the Department of Justice. But these are not normal times, and a Trump-appointed attorney general will not only drop the appeal, but also likely seek to eliminate the use of special counsels altogether.

Another issue for Smith and the department is whether to try to hastily release his report before Smith is fired. And the release of such a report raises the possibility of conflict between Smith and the ever-cautious Garland. Under regulations governing the conduct and accountability of special counsels, such a conflict could require Garland to report the disagreement to Congress.

Questioning the authority of the special counsel is exactly what Trump and his allies have done since the Mueller investigation. The most recent example, reported by the Washington Postis the new Trump administration’s plan for “the next Justice Department…to critically examine what Smith’s team has done over the past two years to “ensure that nothing like does not recur.” made a “cottage industry” of “investigating investigators,” with Congressional approval. surveys on the investigation of Hillary Clinton, Robert Muellerthe investigation into Russian interference, the Georgia election interference case brought by Fani Willisthe New York fraud case and Hunter Biden prosecutor, as well as, more famously, a special advocate John Durhamhis own investigation.

Durham embodies the pinnacle of Republican fetishism to investigate investigations. He spent four years, a lot of time in private dinners with former Attorney General William Barr, and millions of taxpayer dollars to discover nothing, while still managing to lose two jury trials. But Durham could soon lose its title as reigning champion of the “investigate investigations” game.

The joint letter from Jordan’s House Judiciary Committee and Loudermilk’s Oversight Subcommittee demanding that Smith’s team preserve all their records notes that joyful rise of their investigation in prosecutions. The request itself is modeled after what is called a “dispute retention notice,” which warns the recipient not to destroy potentially relevant or discoverable records. Such requests are very intrusive and usually overbroad – but issuing such notice to Smith is a meaningless and demonstrative action. Smith’s team Already must preserve its records as part of the normal course of recordkeeping – not to mention the historical value of those particular records. Prosecutors are not in the habit of shredding their files after the case is over.

However, Jordan-Loudermilk investigations would normally be stymied by the DOJ’s habitual refusal to provide information or testimony about an ongoing criminal investigation or case. But if Smith rejects the cases, then this argument is weakened. Additionally, a Trump-appointed attorney general is likely to order full disclosure of all information sought, without regard for witness protection or sensitive information. Likewise, if called to testify, Smith and his team will not have the shield of an ongoing case to deflect investigations.

Congressional investigations, however, can be a double-edged sword for Republicans. An investigation into this case will involve testimony and the disclosure of that evidence that Jordan and Loudermilk wish to preserve. Such a proceeding may not be what Trump wants, given its renewed focus on actions that have resulted in dozens of criminal charges against him, both at the federal and state level. states. NBC News reporter Ken Dilanian raised the specter of a more Nixonian approach when he asked whether Trump could simply order all the evidence accumulated by the prosecution at the DOJ be destroyed. This more common-sense approach of erasing the history of federal prosecutions against Trump would now run counter to Congress’s preservation advice.

Nor are congressional investigations the only weapon Republicans have. An attorney general fully committed to carrying out Trump’s orders could order the DOJ to open actual criminal investigations.

Mike Davis, former clerk to Supreme Court Justice Neil Gorsuch, who was rumored to be a potential candidate for attorney general, illustrated this in sexist speech addressed to New York Attorney General Letitia James: “Let me just say this to Big Tish James. …I challenge you to try to continue your legal fight against President Trump during his second term. Because listen, honey, we’re not kidding this time,” Davis said on a podcast. “And we’ll put your fat ass in jail for anti-rights conspiracy, I promise.”

This is the same Mike Davis who previously spoke of his desire to harm Trump’s political enemies: “I want to drag their dead political bodies into the streets, burn them and throw them off the wall.” (Legally, politically and financially, of course.)” It’s unclear exactly what criminal charge Davis has in mind when he talks about “anti-rights conspiracy,” but in other threats against Liz Cheney and Cassidy Hutchinson, Davis said he obstructed a congressional investigation. and lie to Congress like the charges he believes should be pursued.

Not only is there no evidence on which to open such investigations against James or Smith, let alone charge or convict, but the motivation expressed by Davis also violates the DOJ Manual. For example, Section 9-27.260 relating to “Initiation and Denial of Charges – Unacceptable Considerations” prohibits the use of “political associations, activities or beliefs” as a factor in the decision to file charges. Section 9-85.500 of the manual also requires that “federal prosecutors and agents may never choose the timing of any action, including stages of an investigation, criminal charges or statements, for the purpose of influencing a election or with the aim of giving an advantage”. or a disadvantage to any candidate or political party.

However, such rules have little value in the face of an attorney general determined to ignore and violate them.

Smith and his team got off to a late start through no fault of their own. By the time Smith was appointed, it was still clear that getting the Jan. 6 case to trial before the election was a daunting challenge. Against all odds, facing a conservative Supreme Court majority that seemed inclined to let time run out, Smith’s team made rapid progress with the help of Chutkan’s pragmatic handling of the case.

But “almost” in criminal proceedings counts for nothing. History will only judge Smith’s efforts by what his report sees the light of day. And if a new Trump DOJ opens punitive criminal investigations, then Smith and many others will suffer the consequences of Garland’s belief that the judiciary must be blind to political realities — no matter how much those political realities stand in the way of justice.