Special Counsel Jack Smith's office is preparing for retaliation if Trump wins

CNN
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A year after filing historic charges against former President Donald Trump, remaining prosecutors in special counsel Jack Smith's office are considering legal options and preparing for retaliation if Trump returns to the White House.

Trump has called Smith a “sick puppy” and vowed to fire him “in two seconds” – effectively ending two criminal cases over the former president's handling of classified documents and his efforts to overturn the 2020 election. The Justice Department also has no ability to prosecute a sitting president.

But Smith would have until Inauguration Day in January to weigh his options on issues the department has never had to deal with before.

A first hurdle is whether the Justice Department's Office of Legal Counsel believes that an elected president has the same legal protection from prosecution as a sitting president. Those guidelines will determine the next course of action, people with knowledge of the matter told CNN.

More than half a dozen people close to the special counsel's office or other senior Justice Department officials told CNN that they believe Smith does not want to close the deal until he is asked to do so or is ousted by Trump.

“He's not going to be the one to say, 'I'm going to fold up the tent,'” a former Justice Department official with insight into Smith's approach told CNN.

Prosecutors are also bracing for a personal toll, including the possibility of Republican-led congressional investigations into their work and internal professional reviews that could be launched by the Justice Department at Trump's urging.

Many also counted on right-wing outrage against her when they joined Smith's team two years ago, even though they knew that was a possible outcome. The Office of Special Counsel has conducted briefings on harassment, particularly related to online doxxing, cybersecurity and stalking. Smith has his own detachment of several security guards, and other members of his team have taken measures to ensure their safety.

Meanwhile, the office has already been reduced to a skeleton staff as some prosecutors have left the office to take on other duties at the Justice Department. Others are also considering leaving, including to big defense firms, where Justice Department lawyers often wait outside the revolving door of Democratic or Republican administrations.

The pay in these private sector jobs is often more lucrative and can cover personal legal fees if they end up having to hire their own lawyers.

If Trump wins, employees reporting to the special counsel's office would have the opportunity to return to their home departments within the Justice Department. Unlike political appointees like Smith, they cannot be fired at the direction of the president.

But former prosecutors in the Trump case could face a difficult job once Trump appointees lead the department.

Although closing his office before the inauguration was always an option, sources say Smith and his core team will likely keep both Trump cases going in court as long as possible, knowing full well that they are head over heels in Trump's wrath could advise.

Smith and his team are appealing Judge Aileen Cannon's July decision to dismiss the classified documents case against Trump and his two co-defendants, in which she ruled that Smith did not have standing to prosecute the case. The department is appealing her firing, generally defending its ability to use special counsel to shield politically sensitive investigations. If the appeals continue, the matter is likely to go to the Supreme Court.

Sources say Cannon's dismissal of the case was not particularly demoralizing for Smith's office, in part because some of the prosecutors realized early on that Cannon would likely be a bad draw for them when she first got the case in 2023.

Still, the prosecution team for the Florida case was shrinking even before Cannon dropped the case. A prosecutor who many had believed had tried the case, David Raskin, left Smith's office before Cannon dismissed the case to pursue prosecutions related to the case under his longtime close colleague, now-Assistant Attorney General for National Security Matt Olsen Hamas and other national security operations.

In Washington, Smith's prosecutors are pressing ahead with the criminal case, alleging that Trump orchestrated a conspiracy to overturn the 2020 election after the Supreme Court ruled that Trump enjoyed immunity for certain presidential acts.

In recent weeks, the special counsel's office filed its 252-page brief seeking to convince the trial judge and possibly the Supreme Court that Trump's actions are not immune from prosecution.

That move — a comprehensive public presentation of evidence with strong language about Trump's intent and culpability — was an example of Smith's single-minded approach, some sources said. Trump's lawyers criticized the court's approach as inconsistent with typical procedural procedures and unfair to Trump as the defendant.

The immunity report may be the most comprehensive documentation of the Jan. 6 federal criminal case the public will ever see.

At the Justice Department, top politicians are watching the election closely, knowing full well that if Trump wins, they will have to deal with unprecedented legal questions.

If Vice President Kamala Harris wins, decisions could be much easier for the department and the special counsel's office. The two criminal proceedings would continue. Individual prosecutors would have to decide whether to pursue the case long enough to bring Trump to trial, which could take years.

Attorney General Merrick Garland has long held that the two federal criminal cases against Trump, once indicted, were in the hands of the court system.

“The matter is now in the hands of the trial judge to determine when a trial will take place,” he told CNN in January.

If Trump wins, one question will be what to do in court during the presidential transition. The Justice Department has long maintained that it would not prosecute a sitting president while in office.

Smith and Justice officials will almost certainly have to seek advice from the department's Office of Legal Counsel on whether a president-elect can be prosecuted, which could prompt the DOJ to set policy for future presidencies as well, they said people informed about the matter.

In the Jan. 6 case, prosecutors could also ask Federal Judge Tanya Chutkan to let the case rest — effectively put it on hold — in the months before Trump takes office.

Then, on January 20, when Trump takes office, the process could become complicated. The January 6 case against Trump is in the hands of Chutkan and approved by a grand jury – two functions of democracy that are outside the executive branch and the full control of the Justice Department. Prosecutors would have to ask Chutkan to dismiss the case.

And although the judge will likely ultimately do so, Chutkan may not immediately close the proceedings and may request additional documents, arguments and information.

“Just think of the chaos of it all – he (Trump) would like that,” said one of the former Justice Department officials.

CNN's Evan Perez contributed to this report.