The Justice Department wants to end criminal proceedings against Trump before he takes office

Justice Department officials were They are examining how to drop the two federal criminal cases against President-elect Donald Trump before he takes office to comply with the department's longstanding policy that a sitting president cannot be prosecuted, two people familiar with the matter tell NBC News.

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

However, according to the sources, Justice Department officials have grappled with the fact that neither the Jan. 6 case nor the classified documents matter is likely to go to trial any time soon – both are mired in legal issues that are likely to require an appeal would result in a trip to the Supreme Court even if Trump had lost the election.

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

“Reasonable, inevitable and regrettable,” said former federal prosecutor Chuck Rosenberg, an NBC News contributor.

How Trump's legal jeopardy has unfolded over the past year, both in terms of the criminal charges and his overwhelming election victory, is unprecedented.

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

The sources say that all these questions need to be studied and researched.

At the same time, Trump's legal team is weighing its own next steps to resolve the outstanding federal cases in the former president's favor now that he is the presumptive winner of the election. The ultimate goal is to completely eliminate all federal and state cases – the strategic decision is how best to accomplish that task, according to a person familiar with the discussions.

For example, if the Trump side went back to court to dismiss the election interference lawsuit in Washington, the Justice Department could use its legal response to explain its position not to pursue the case.

Trump's New York criminal trial presents several challenges, with the felony conviction and sentencing hearing scheduled for Nov. 26. The immediate goal of Trump's legal team is to postpone the trial indefinitely or otherwise dismiss it.

Trump's election interference trial in Georgia remains tied to appeals over ethics issues involving the district attorney.

The DOJ's considerations of Trump's federal cases are based on a 2000 memo from the Justice Department's Office of Legal Counsel that a Watergate-era conclusion that criminal prosecution of a sitting president would “inappropriately interfere, directly or formally, with the conduct of the presidency.”

“Given the impact that impeachment would have on the work of the executive branch, 'impeachment is the only appropriate way to deal with a president while in office,'” the memo concludes, citing the earlier conclusion.

The practical reality of Trump's victory on Tuesday is that he will likely never face legal consequences for the serious federal criminal charges brought against him by Justice Department prosecutors working with career FBI agents.

Some commentators said the allegations were arguably more serious than conduct in the Watergate scandal, which cost Richard Nixon the presidency and banished him from politics.

In the case accusing Trump of plotting to illegally overturn the 2020 election, he is charged with conspiring to defraud the United States, obstructing an official proceeding and conspiring against rights.

In the case of the secret documents, he is accused of intentionally withholding national defense information, conspiracy to obstruct justice, lying to investigators and withholding documents as part of a federal investigation.

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

She added that it was never a given that Trump would be convicted – that would be up to a jury.

“What bothers me so much is that he avoided the essential part of American justice – letting a jury decide based on evidence.”