Special Counsel Jack Smith’s two cases against President Trump are finished, but the prosecutor’s work is not — even as he has made it onto a “list” compiled by Congressman James Clyburn of those whom the 46th president would be wise to pardon before he leaves office.  

The possibility of a pardon for the prosecutor throws into sharp relief the fateful decision that Attorney General Garland will soon have to make. The regulations that govern Mr. Smith mandate 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.” 

The ball then passes to Mr. Garland, who “may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” The plain language of the regulation — it was formulated by Attorney General Reno — suggests that the decision of whether to release the report rests with the attorney general alone.

Mr. Smith is reportedly planning to resign before President-elect Trump takes office on January 20, and his report is due before he departs. That could leave Mr. Garland a compressed time frame within which to not only digest what Mr. Smith has to say, but also to decide whether to disclose it to the public — and an incoming administration with a grudge against the special counsel.

The special counsel could view the required report as an opportunity to make the case that he will never get to deliver in court. In Mr. Smith’s motions to dismiss, he acknowledged the “categorical” prohibition on prosecuting a sitting president, but asserted that “circumstances” and not “merit” were to blame for the collapse of his cases. He requested that the prosecutions be dismissed “without prejudice,” keeping alive the remote hope that they could be resurrected at some time in the future.

Mr. Garland appointed Mr. Smith as special counsel in November 2023, two days after Trump declared his intention to retake the presidency. The hiring of Mr. Smith away from the Hague, where he had been prosecuting Serbian war crimes, generated fresh scrutiny when Judge Aileen Cannon in South Florida determined that the appointment was unlawful and dismissed all charges against Trump and two others with respect to the retention of secret documents at Mar-a-Lago. 

Mr. Smith took that decision to the 11th United States Appeals Circuit, in a request for review. He withdrew the request in the wake of Trump’s victory last month over Vice President Harris. Mr. Garland, who once served as chief rider at the District of Columbia circuit, in July asked NBC News: “Do I look like someone who would make that basic mistake about the law?”

It turns out that Judge Cannon’s ruling now stands as the last word in the Sunshine State, holding that General Garland, whatever his looks, did make a basic mistake about the law — though Mr. Garland could release Mr. Smith’s report in whole or in part.

The attorney general could also issue his own summary or gloss of the special counsel’s findings, as Attorney General Barr did before the release of Special Counsel Robert Mueller’s dispatch on alleged Russian interference in the 2020 election. That move evoked a firestorm of criticism from Democrats.  

Mr. Smith has already had one opportunity to present a fulsome case against Trump. In September, Judge Tanya Chutkan at the District of Columbia published the special counsel’s 200-page opus on why presidential immunity does not preclude Trump from standing “trial for his private crimes as would any other citizen.” Trump tried to stop the release of that book-length brief, which the president-elect called a “false hit job” and a “monstrosity.” Much of that document, though, was redacted.

Mr. Garland’s looming decision will take place against a backdrop of growing hostility from the incoming administration. That’s what likely prompted Mr. Clyburn to tell CNN that Mr. Smith would be on his list of potential people to preemptively pardon. Senator Markey told Boston Public Radio the same last month.  

This comes after Representative Jim Jordan, in a letter to Mr. Smith, warned that he “should preserve all records.” The lawmaker posted that message to X. The platform’s owner, Elon Musk — also the richest man in the world  and a close ally of Trump — commented that “Jack Smith’s abuse of the justice system cannot go unpunished.”