IN TWO MONTHS, Donald J. Trump will control the entire executive branch of the national government. His allies will control at least one chamber of Congress, probably both. The Supreme Court is leaning in its direction. With this in mind, Special Counsel Jack Smith must now decide how to conclude what is likely to be the last (and first) prosecution of a former president for violating federal criminal law.

And it’s not just logistics that Smith has to think about. He must consider the legacy of the US Constitution itself.

As a reminder: Last year there were four criminal indictments against Donald Trump, two federal, two state. The only case that went to trial was his prosecution in Manhattan for falsifying business records as part of a 2020 campaign cover-up. In that case, he was found guilty last May of 34 felony charges. Judge Juan Merchan is scheduled decide this week if the conviction can stand—not because of Trump’s election, but because of the US Supreme Court’s stunning ruling in Trump vs. the United States last summer that presidents enjoy broad immunity from prosecution. Trump was scheduled for sentencing on Nov. 26 in the case; it is not clear what will become of her.

In Georgia, Fulton County District Attorney Fani Willis was RE-ELECTED last week. Her case against Trump for meddling in Georgia’s 2020 election has slowed to a trickle due to legal maneuvering — including impeachment motions stemming from a personal relationship she had with a colleague — and the double-dealing of the Supreme Court ruling and the election of Trump now. leaves the future of the case in doubt.

In the federal case in Florida regarding classified documents that Trump illegally kept after he left the White House, U.S. District Judge Aileen Cannon, a Trump appointee and unabashed political loyalist, has already dismissed the case on the silly grounds that Smith been called unconstitutional. That ruling is on appeal to the U.S. Court of Appeals for the Eleventh Circuit, which is expected to overturn it, given that major flaws in Cannon’s reasoning. But for now, the case is dead.

Which leaves Smith’s other big case: the prosecution of Trump for his attempts to overturn the 2020 election, including the Jan. 6 attack on the Capitol. Last Friday, Smith documents submitted U.S. District Judge Tanya Chutkan, saying that “as a result of the election,” he “respectfully requests that the Court vacate the remaining dates of the pretrial schedule to allow the government time to evaluate this unprecedented circumstance.” Chutkan immediately accepted Smith’s request. “By December 2, 2024, the government will file a status report or otherwise inform the Court of the outcome of its deliberations,” Smith said.

The case remains mired in litigation regarding the method of analysis Trump vs. USAwhich created criminal immunity for presidents so long as they commit crimes with official presidential power that fall within the outer limits of Article II of the Constitution. Unless the decision is overturned by a new Supreme Court majority or a constitutional amendment (neither of which is conceivable), it effectively means that, from President Joe Biden onward, no president will ever face the prospect of criminal liability for the crimes they commit in office. .

Which also means that, going forward, presidents have no significant barriers, other than personal integrity, to withdrawing their worst instincts. (The argument that presidents could still be prosecuted for using the military or the Justice Department against political enemies, or for selling pardons or classified information to the highest bidder, on the grounds that their actions are “unofficial” and therefore , unprotected is wise.)

So what Smith does now matters—both to US history and to the rule of law.

Legal experts are already at odds over the wisdom of Smith’s indefinite pause on the entire case since Jan. 6. Former federal prosecutor Glenn Kirschner argues that Smith should “force Donald Trump’s hand” by indicting his co-conspirators, who do not have presidential immunity. Ty Cobbwho was a White House adviser to Trump in his first administration and is now a critic of his former boss, explained that “they are listed as conspirators, not unindicted co-conspirators. . . which is significant because it suggests they will be indicted if they don’t settle with the government.” Co-conspirators are believed to include Rudy Giuliani, John Eastman (who wrote the document memories urging then-Vice President Mike Pence not to certify the results of the 2020 election under a fanciful reading of the Constitution), Sidney Powell (a former Trump lawyer who was kicked out of the inner circle when her theories about a stolen election became too outlandish even for Trump), Jeffrey Clark (a civilian DOJ attorney whom Trump tapped as acting attorney general in hopes of charging the Justice Department with helping to steal the election), and Kenneth Chesebro (a Trump attorney who was behind the bogus plan voter lists).

Indicting those people would keep the impeachment flame burning on the theory that the Jan. 6 case is serious business and that voters don’t have the power to eliminate federal criminal law altogether, even when it comes to Trump. Kirschner said: “If Donald Trump wants to get rid of the cases against his criminal associates, his co-conspirators, the people who helped him try to steal the 2020 election. . . after he is sworn in as president, he will have to engage in corruption.” That option would send a message that Smith stands behind the integrity of the trial and the importance of the case to our democracy — and that if the indictment is going to go down, Trump must be the one to do it, issuing pardons and closing. down the prosecutions.

Last month, Trump said this will fire Smith ‘in two seconds’ after returning to the White House, suggesting Smith should work quickly to secure another grand jury indictment.

Trump technically cannot fire Smith under the DOJ Rulemaking the creation of special advisors, which are meant to ensure a measure of structural independence. He could, however, direct his attorney general to fire him. That person is also, at least in theory, constrained — and can only “remove a special counsel for misconduct, misconduct, incapacity, conflict of interest, or other good cause, including violation of department policies.” But Trump-elect will certainly have no problem cooking up “good cause” for firing Smith. Alternatively, Trump could just direct the DOJ to change the regulations entirely, which would not require an act of Congress. (This is in contrast to the Ethics in Government Act, which is the law that created the office of independent counsel under which Whitewater independent counsel Kenneth W. Starr operated; that statute has expired.)

Speaking about the special counsel’s regulations, attorney and former FBI agent Asha Rangappa argues instead, it is imperative that we close the cases now so that Smith has time to write a report to Attorney General Merrick Garland memorializing the evidence against Trump. regulation state that “at the conclusion of the special counsel’s work, he shall provide the attorney general with a confidential report explaining the decisions to prosecute or decline made by the special counsel.” Rangappa points out that otherwise, the record in these cases would “disappear into a black hole” because whatever Trump does with the evidence is now an “official act” and forever immune from criminal scrutiny.

The specter that Trump will completely erase the trove of evidence against him is particularly troubling in the case of classified documents. Smith wrote in a recent court filing that “the truth is that the vast majority of the allegations in the indictment — including allegations of the defendants’ conduct, knowledge and intent — are based on the evidence contained in the unclassified discovery, not a much smaller set. of classified discovery”. Everyone agrees that classified material was taken from the White House to Mar-a-Lago. What remains in dispute, Smith argues, is “how it happened, why it happened, what Trump knew and what Trump intended to withhold — all matters the government will prove at trial primarily without unclassified evidence.” Therefore, without a final report, the extent of the damage Trump did to national security after leaving the White House, the first round could be whitewashed forever.

It seems thatThe DOJ also feels chastised by a 2000 internal memo ordering prosecutors not to prosecute sitting presidents. Now that the Court has endowed presidents with criminal immunity, the memo is largely meaningless. But that’s not why Smith shouldn’t worry about the memo, which isn’t law. It is only a statement of DOJ’s internal policy. Garland could revoke the grade tomorrow. In fact, according to the Supreme Court, Biden could direct him to do so. He could even use his waning weeks in office to direct Garland to push the limits of the law in an effort to save the special counsel’s work for posterity. If Trump later impeached Biden for this, the Court would abandon the effort — at least it would if it acted consistently with its own decisions.

ORIENT SMITH PROCEEDINGS, the importance of the two indictments he presided over cannot be overstated. During Trump’s first term, his actions — and the GOP’s favorable responses to them —gutted all the bars that exist under the Constitution to impeach a criminal president except one: a criminal impeachment. That’s what happened. However, Garland waited too long to appoint Smith, and the Supreme Court’s far-right majority, along with Justice Cannon, threw out Smith’s cases in the run-up to the election. Trump will soon be in charge of the DOJ, armed with the Court’s ruling that he has the discretion to abuse federal law enforcement for his own criminal purposes and that his motives for targeting people are untouchable.

Smith may have reason to worry about himself.

But if his actions thus far are any indication, the American people can expect Jack Smith to do what he believes is best for the Constitution and the rule of law at this time. At least until Trump tears down what’s left.