The Republican presidential nominee, former President Donald Trump, holds a campaign rally at Gastonia Municipal Airport on Nov. 2, 2024 in Gastonia, North Carolina.  Trump won the election on Nov. 5 and now federal prosecutors are winding down an election interference case against him related to the 2020 election. (Photo by Chip Somodevilla/Getty Images)

Special counsel Jack Smith, the prosecutor in the federal criminal cases against President-elect Donald Trump, asked a D.C. federal judge on Friday to suspend deadlines in the election interference case that centered on Trump’s supporters’ Jan. 6, 2021, attack on the U.S. Capitol.

To allow the government time to mull the “unprecedented circumstance” of a former president under indictment returning to the White House after Tuesday’s election, Smith’s team, writing in an unopposed motion to U.S. District Judge Tanya Chutkan, called for upcoming deadlines in the case to be cleared.

Under U.S. Justice Department precedent that dates to the Watergate era, the department may not prosecute a sitting president. 

“As a result of the election held on November 5, 2024, the defendant is expected to be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025,” the prosecutors wrote.

“The Government respectfully requests that the Court vacate the remaining deadlines in this pretrial schedule to afford the Government time to assess this unprecedented circumstance and determine the best appropriate course going forward consistent with Department of Justice policy.”

A 1973 Justice Department memo concluded that criminally prosecuting a sitting president would diminish the president’s capacity to perform the office’s functions. That conclusion was affirmed in a 2000 memo dealing with the question.

The four-sentence brief filed Friday said prosecutors would let the court know by Dec. 2 what route they planned to take.

Chutkan granted the motion shortly after Smith filed it.

Reversal of Trump’s fortunes

The legal development marks another milestone in Trump’s remarkable comeback.

The former president ended his first term, shortly after the Jan. 6 attack and amid a worldwide pandemic, with fewer than 39% of voters holding a favorable opinion of him and nearly 58% disapproving.

Over the next few years, the U.S. Justice Department and state prosecutors in New York and Georgia launched investigations into allegations that resulted in four felony indictments.

But in part thanks to his electoral victory in which he won or led in as of Friday afternoon every battleground state and could win the popular vote for this first time in his three White House runs, Trump appears likely to escape culpability in any of the cases.

Smith, whom Trump railed against and promised to fire — and possibly deport — appears ready to drop the election interference case.

U.S. District Judge Aileen Cannon, a Trump appointee in South Florida, already dismissed charges related to Trump’s alleged mishandling of classified documents that prosecutors said he illegally took from the White House and brought to his Mar-a-Lago estate after his 2020 election loss. Prosecutors have appealed that decision.

The Georgia election interference case that charged Trump as part of a conspiracy to overturn the 2020 election results in the state has sputtered amid revelations Fulton County District Attorney Fani Willis, who is prosecuting the case, had an inappropriate relationship with a subordinate in her office.

A New York jury did find Trump guilty earlier this year of 34 felony counts of falsifying business records related to hush money payment promised to adult film star Stormy Daniels during the 2016 presidential campaign.

But sentencing for that case was postponed following the U.S. Supreme Court’s ruling granting presidents the presumption of criminal immunity for any acts conducted in their official capacity.

The Nov. 26 sentencing could be further delayed as Trump prepares to return to the White House.