WASHINGTON — Special counsel Jack Smith and his team plan to resign before President-elect Donald Trump takes office, a source familiar with the matter said.

Smith’s office was evaluating the best way to wind down its work on the two pending federal criminal cases against Trumpbecause the Justice Department’s longstanding position is that it cannot charge a sitting president with a crime.

The New York Times first reported that Smith would resign.

The question looming in the coming weeks is whether Smith’s final report detailing his charging decisions will be made public before Inauguration Day. The special counsel’s office is required by Justice Department regulations to provide a confidential report to Attorney General Merrick Garland, who may choose to make it public.

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At the end of October, Trump said in a radio interview that he would fire Smith immediately as a special adviser if re-elected. “It’s so easy — I’d fire him in two seconds,” Trump said, adding that he received “immunity to the Supreme Court.” The next attorney general could decide not to release Smith’s final report either.

Before Trump’s re-election last week, Smith and his team continued to advance their election interference case against Trump. After Trump’s victory, however, a federal judge overseeing the case agreed to give the special counsel’s office until December. 2 to decide how to proceed.

Department of Justice inTrump dictated last year for his efforts to overturn the 2020 presidential election. But Smith’s case was hampered early by calls from Trump’s legal team and then in July of this year by the Supreme Court ruling that he has immunity for some acts he took as president. In August, Smith’s team redrafted the indictment — stripping it of certain evidence the high court said was barred and a federal grand jury returned a superseding indictment in the case.

The Justice Department also accused Trump in Florida of hoarding classified documents after he left office and then refusing to give them back. But a federal judge dismissed it the case in July, saying Smith’s appointment is illegal. This case remains on appeal.

When the former president was first indicted, Smith said he would move quickly to trial, but Trump’s legal team successfully tried to delay both cases, while then-candidate Trump routinely beat Smith at his rallies and online.

The election interference case in Washington has focused closely on Trump, but it remains an open question whether the unnamed co-conspirators referenced in the indictments face future legal jeopardy.

There is no Justice Department rule for alleged criminal conspirators to avoid prosecution because they are connected to a future president or because the future president is likely to pardon them.