WASHINGTON — Special counsel Jack Smith and his team plan to resign before the presidential election Donald Trump takes office, said a source close to the matter.

Smith’s office was assess the best path to ending its work on the two pending federal criminal cases against Trumpbecause the Justice Department’s long-standing position is that it cannot charge a sitting president with a crime.

THE New York Times first reported on Smith’s plans to step down.

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

At the end of October, Trump said in a radio interview that he would immediately fire Smith as special advisor if re-elected. “It’s so simple: I would fire him in two seconds,” Trump said, adding that he got “immunity from the Supreme CourtThe next attorney general could also decide not to release Smith’s final report.

Before Trump’s election last week, Smith and his team had continued to move forward with their election interference case against him. However, after Trump’s victory, a federal judge overseeing the case agreed to give the special prosecutor’s office until Dec. 2 to decide how to proceed.

The Department of Justice InTrump dictated last year for his efforts to overturn the 2020 presidential election. But Smith’s case was hampered early on by appeals from Trump’s legal team, and then in July by the Supreme Court’s ruling. ruling that he benefits from immunity for some of his actions as president. In August, Smith’s team revamped the indictment — stripping it of some evidence the high court had ruled prohibited — and impaneled a federal grand jury. issued a superseding indictment in the case.

The Justice Department had also accused Trump in Florida of allegedly hoarding classified documents after leaving office and then refusing to return them. But a federal judge dismissed the case in July, saying Smith’s appointment was illegal. This case remains under appeal.

Smith asked the U.S. Court of Appeals for the Eleventh Circuit on Wednesday to stay his appeal in the classified documents case.

He asked the court to extend Friday’s deadline in the case and give prosecutors until Dec. 2 to allow them time to “evaluate this unprecedented circumstance and determine the appropriate course of action to move forward.” forward, consistent with Department of Justice policy,” in light of Trump’s return to the White House.

The move mirrors a request Smith previously made in the federal election interference case, which a judge requested. granted.

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

The election interference case in Washington focused narrowly on Trump, but it remains an open question whether the unnamed co-conspirators named in the indictments face future legal risk.

There is no Justice Department standard that alleged criminal conspirators must avoid prosecution because they are connected to a new president or because that future president is likely to pardon them.