Special prosecutor Jack Smith is evaluating how to end two federal cases against Trump before he takes office, a person familiar with the matter said Wednesday (November 6), because of the long-standing Justice Department policy that a sitting president cannot be prosecuted.

Last year, Smith accused Trump of trying to overturn the results of the 2020 presidential election and illegally hoarding confidential documents at his Mar-a-Lago residence. But because Trump defeated Kamala Harris for the presidency, the Justice Department believes he will be immune from prosecution based on decades-old Justice Department legal opinions that are designed to protect sitting presidents from criminal charges.

The person familiar with the matter was not authorized to disclose the details and provided the information to the Associated Press on condition of anonymity.

By ending the cases before taking office in January, Smith and the Justice Department will avoid a potential confrontation with Trump. The president-elect also said last month that he would fire Smith “within two seconds” of taking office. Smith was appointed by Attorney General Merrick Garland in November 2022.

NBC News first reported Smith’s plans.

Smith’s two cases accuse Trump of plotting to overturn the election results (leading to the Capitol riot) and retaining classified documents at his Mar-a-Lago resort in Florida and obstructing the FBI’s recovery efforts.

The classified document case has been stalled since Trump-appointed Judge Aileen Cannon ruled in July that Smith’s appointment was illegal. Smith has appealed to the 11th U.S. Circuit Court of Appeals in Atlanta, and that request is still awaiting a decision.