Could Special Counsel Jack Smith keep alive his two prosecutions of President Trump for another four years? That is one question that emerges amid reports that the special counsel intends to wind down the cases against Trump for election interference and retaining secret documents at Mar-a-Lago.

Mr. Smith has until December 2 to inform Judge Tanya Chutkan and the 11th United States Appeals Circuit of his intentions. That date was Mr. Smith’s suggestion, and was subsequently granted by the trial and appellate courts.

The prosecutor, formerly in an all-fired rush, now writes that he needs more time to scheme around this “unprecedented circumstance.” He asks for more time to “determine the appropriate course going forward consistent with Department of Justice policy.” 

That policy, in place for more than half a century, maintains that the “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

That same logic informed the Supreme Court’s ruling in Trump v. United States that all official presidential acts are presumptively immune. The Nine held that the president’s duties are possessed of “unrivaled gravity and breadth.”

While the ruling of Trump caused Mr. Smith to slim down his indictment to circumvent reliance on acts that the court ruled were “absolutely immune,” the special counsel was undaunted in his conviction that Trump “must stand trial for his private crimes as would any other citizen.” 

Throughout the campaign, Mr. Smith and Judge Chutkan flouted longstanding DOJ conventions against allowing prosecutions to interfere with a presidential campaign — Judge Chutkan made public tranches of damaging documents Mr. Smith had prepared about Trump — but this time, the prosecutor seems to accept that the non-prosecution policy is one he must abide by, at least for now.

Beginning at noon on January 20, Trump will not again be a private citizen until noon on January 20, 2029. He has vowed to fire Mr. Smith “within two seconds” of becoming president. The special counsel regulations dictate that the task of distributing the pink slip falls to the attorney general.

In this case, that could be Congressman Matt Gaetz, who not only exhibits fealty to Trump, but also despises the Department of Justice. “Good cause” is required to fire a special counsel, and the case must be made in writing. Mr. Smith and Attorney General Garland may have decided that they do not have the stomachs for that fight.

President Biden’s Department of Justice has one more card to play. The statutes demand that at the “conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” Whether and how  to release the report would be up to Mr. Garland, or his successor. 

There is a possibility, though, that Messrs. Garland and Smith could seek to preserve the charges for the day after Trump’s second term ends — when he is no longer ensconced in the immunity of the presidency. They could ask Judge Chutkan to dismiss the four criminal charges handed up against Trump for January 6 without prejudice, meaning that they could be refiled at a later date. 

The Legal Information Institute explains that “one of the main features of dismissal without prejudice is that it does not prevent refiling of the claim in the same court.” A dismissal with prejudice, on the other hand, is considered by courts to be an “adjudication on the merits,” and the prosecution is barred from bringing the case again.

The Mar-a-Lago charges have already been dismissed by Judge Aileen Cannon, and Mr. Smith appears ready to halt an appeal to the 11th Circuit that could reinstate them. Judge Cannon’s ruling would then become law. One complication is that the Mar-a-Lago case involves two other defendants — Waltine Nauta and Carlos De Oliveira.

They are bereft of the immunity that Trump will assume once he takes office. If Mr. Smith does not move to dismiss the charges against them, Trump could pardon them — before or after the 11th Circuit hands down its verdict on Judge Cannon’s decision. Prosecutors, though, would have to keep their eye on the statutes of limitation.  

Mr. Smith’s cases never went to trial — despite his exertions to accelerate them. That means that he would not have to worry about the constitutional prohibition of double jeopardy, which ordains that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” The Supreme Court has ruled that jeopardy only occurs once a jury is seated.