• On Friday, Smith successfully attempted to freeze deadlines in Trump’s election interference case.
• The special prosecutor cited the “unprecedented circumstances” of Trump’s re-election.
• Justice Department policy states that a sitting president cannot be prosecuted while in office.

A federal judge on Friday granted special counsel Jack Smith’s request to overturn all pending deadlines for the president-elect. Donald Trumpit’s 2020 election interference case.

Wiping the calendar doesn’t completely kill the case. It feels like a white flag has been raised, legal experts told Business Insider.

“I don’t see any path for these cases to survive,” said former federal prosecutor Ephraim Savitt.

As a defense attorney, Savitt faced Smith in two death penalty trials in Brooklyn when the special counsel was an assistant U.S. attorney.

“I know Jack very well. He is a very intelligent lawyer and a hard-working prosecutor. If anyone could keep these cases alive, it would be him,” he told BI. “But he’s already virtually unemployed. And a Trump DOJ will act unopposed to get the cases dismissed,” he added.

Smith asked that the deadlines be waived in a court filing Friday morning. He said he needed until Dec. 2 “to determine the appropriate course of action, consistent with Department of Justice policies.”

How will Smith use this time?

He could close shop quietly, until the Jan. 20 inauguration, after which Trump has promised to fire him, some legal experts said.

In other words, Smith would “bow out gracefully,” rather than waste judicial resources, as veteran Manhattan prosecutor and financial crimes lawyer John Moscow put it.

“Smith is an extremely professional and competent prosecutor,” Moscow said. “He knows that Donald Trump was elected president and that he will be able to appoint a new attorney general who will be able to dismiss all pending federal cases.”

On the other hand, Smith and his team could stay busy, using the next 11 weeks to prepare a final statement.

“He could simply decide to close the files himself, in December,” then “write a long report with all the evidence” for his boss, Attorney General Merrick Garland, said Michel Paradis, professor of constitutional law at the Columbia University Law School. .

Smith could alternatively continue pursuing his lawsuit against nearly impossible odds until the moment Trump is sworn in.

He may continue to litigate in the Mar-a-Lago documents case, in which Trump is accused of obstruction of justice and willful retention of classified and top-secret government documents. Smith is appealing U.S. District Judge Aileen Cannon’s ruling. dismissal of the case from July.

As for the election interference case, Paradis said Smith had a Hail Mary movement.

He could ask the judge to suspend the case on the grounds that the defendant is temporarily unavailable. A longstanding Justice Department policy prohibits the prosecution of sitting presidents.

Such a stay would be granted by U.S. District Judge Tanya Chutkan, and possibly upheld by the Washington, D.C. Court of Appeals, some experts said.

This would stop the speedy trials and statutes of limitations, keeping the election interference case in suspended animation, but alive – until Trump and his new DOJ appeal the stay and seek dismissal from the Supreme Court of the United States.

“Things are going well, I think this Supreme Court will let the DOJ dismiss the case,” Paradis said. “But if he wanted to try to keep the case alive when Trump is no longer in office, this is probably his only viable path to doing so.”

In asking to waive deadlines for insurrection cases, Smith said Trump should be certified president on Jan. 6 and inaugurated on Jan. 20.

“The Government respectfully requests that the Court waive the remaining deadlines on the pre-trial schedule to allow time to evaluate this unprecedented circumstance and determine the appropriate course of action moving forward, consistent with the Department of Justice policy,” the filing states.

“The American people re-elected President Trump with an overwhelming mandate to make America great again,” Trump spokesperson Steven Cheung said in a statement to Business Insider. “It is now abundantly clear that Americans want to immediately end the militarization of our justice system, so that we can, as President Trump said in his historic victory speech, unify our country and work together to his best.”

The Justice Department declined to comment for this story.

The motion states that Smith and his team “will file a status report or inform the Court of the outcome of its deliberations” by December 2.

“The government has consulted with defense attorneys, who do not object to this request,” the filing states.

This story has been updated to include expert commentary.