CNN
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A year after bringing historic charges against former President Donald Trump, prosecutors left in special counsel Jack Smith’s office are weighing up legal options and bracing for retaliation if Trump returns to the White House.

Trump called Smith a “sick puppy” and vowed to fire him “within two seconds” — which would effectively end two criminal cases over the former president’s handling of classified documents and efforts to overturn the 2020 election .The Justice Department is also not in a position to prosecute a sitting president.

But until inauguration day in January, Smith would have time to weigh his options on issues the department has never had to face before.

An early hurdle is whether the Justice Department’s Office of Legal Counsel believes a president-elect is covered by the same legal protections from prosecution as a sitting president. That guidance would determine the next course of action, people with knowledge of the matter told CNN.

More than a half-dozen people who are close to the special counsel’s office or other top Justice Department officials told CNN they believe Smith does not want to close shop before being ordered to do so or being pushed by Trump.

“He’s not going to be the one to say, ‘I’m going to fold,'” 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 congressional GOP-led investigations into their work and internal professional reviews that could be initiated by the Justice Department at Trump’s urging.

Many have also warmed to right-wing furor against them, knowing it was a possible outcome even two years ago when they joined Smith’s team. The Office of Special Counsel has held hearings on harassment, particularly related to online doxing, cyber security and stalking. Smith has his own detail of several security guards, and others on his team have taken steps to protect their safety.

Meanwhile, the office is already reduced to a skeleton crew as some prosecutors have left for other jobs within the Justice Department. Others are also considering leaving, including going to big corporate defense firms, where Justice Department lawyers often wait in the revolving door of Democratic or Republican administrations.

The wages in those private sector jobs are often more lucrative and can cover personal legal bills if they end up having to hire their own lawyers.

If Trump wins, employees detailed to the special counsel’s office would have the option to return to their home divisions 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 tough job once Trump appointees lead the department.

While closing his office before the inauguration has always been an option, sources believe Smith and his core team are likely to keep both Trump court cases alive as long as they can, knowing they could end up falling apart in Trump’s rage.

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 lacked the authority to prosecute the case. The department is calling for her dismissal in a broader defense of its ability to use special counsel to insulate politically sensitive investigations. The issue will likely reach the Supreme Court if the appeals continue.

Cannon’s dismissal of the case was not particularly demoralizing to Smith’s office, the sources said, in part because some of the prosecutors realized early on that Cannon would likely be a bad draw for them when he first received the case in 2023.

However, the prosecution team surrounding the Florida case was dwindling even before Cannon closed the case. A prosecutor who many believed would have tried the case, David Raskin, left Smith’s office before Cannon dismissed the case to oversee Hamas-related prosecutions and other national security prosecutions under his own close colleague, now attorney general Homeland Security Assistant Matt Olsen. .

In Washington, Smith’s prosecutors are continuing their criminal case alleging that Trump orchestrated a conspiracy to overturn the 2020 election after the Supreme Court ruled that Trump had immunity for certain official acts taken as president.

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

That move — a sweeping public presentation of the evidence with clear language about Trump’s intent and culpability — was an example of Smith’s undaunted approach, some of the sources said. Trump’s lawyers criticized the approach in court as inconsistent with typical case procedure and unfair to Trump as a defendant.

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

Inside the Justice Department, top leaders are watching the election closely, knowing they will face unprecedented legal questions if Trump wins.

If Vice President Kamala Harris wins, elections for the department and special counsel office may be much easier. The two criminal cases will continue. Individual prosecutors would have to decide whether to stay on the case long enough to take Trump to trial, which could take years.

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

“The matter is now in the hands of the trial judge to determine when there will be a trial,” 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 will not prosecute a sitting president while he is 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 presidents as well, the people briefed on the matter said. . .

In the Jan. 6 case, prosecutors could also ask federal judge Tanya Chutkan to put the case on hold — essentially putting it on ice — in the months before Trump takes office.

Then, on January 20 when Trump would be inaugurated, the procedure could get complicated. The Jan. 6 case against Trump is in Chutkan’s hands and approved by a grand jury — two functions of democracy that sit outside the executive branch and the full control of the Justice Department. Prosecutors should ask Chutkan to dismiss the case.

And while the judge is likely to do so, Chutkan may not immediately shut him down and could ask for additional filings, arguments and information.

“Just think of the chaos of all of this — that (Trump) would love it,” said one former Justice Department official.

CNN’s Evan Perez contributed to this report.