CNN
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A year after former President Donald Trump filed historic charges, prosecutors led by Special Counsel Jack Smith are testing legal options and preparing for retaliation if Trump returns to the White House.

Trump has called Smith a “sick puppy” and promised to fire him “in two seconds” — which would effectively end two criminal cases over the former president’s handling of classified documents and efforts to overturn the 2020 election. The Justice Department also has no ability to prosecute a sitting president.

But until Inauguration Day in January, Smith would have time to weigh his options on issues the department has never faced before.

One of the first hurdles is whether the Justice Department’s Office of Legal Counsel believes that a president-elect has the same legal protections from prosecution as a sitting president. That guidance would determine the next course of action, people briefed on the matter told CNN.

More than a half-dozen people close to the special counsel’s office or other top Justice Department officials told CNN they believe Smith won’t close the store until he is ordered to do so or pushed out by Trump.

“He’s not going to be the one to say, ‘I’m going to fold the tent,’” a former Justice Department official with insight into Smith’s approach told CNN.

The prosecutors are also prepared for a personal toll, including the possibility of Republican Party-led congressional investigations into their work and internal professional reviews that could be initiated by the Justice Department at Trump’s urging.

Many have also spoken out in favor of right-wing initiated anger towards them, knowing that this was a possible outcome even two years ago when they joined Smith’s team. The Special Counsel’s Office has had briefings on harassment, especially regarding online doxing, cybersecurity and stalking. Smith has his own details from several guards, and others on his team have taken steps to protect their safety.

Meanwhile, the office already has a limited team, as some prosecutors have left for other jobs within the Justice Department. Others are also considering leaving, for example by going to major defense contractors where Justice Department lawyers often wait outside the revolving door of Democratic or Republican administrations.

The pay for these private sector jobs is often more lucrative and can pay for personal legal bills if they end up having to hire their own lawyers.

In the event that Trump wins, staffers in the special counsel’s office would have the option to return to their home departments within the Justice Department. Unlike political appointees like Smith, they cannot be fired at the president’s direction.

But former prosecutors in the Trump case could face a difficult work environment once Trump appointees take over to run the department.

While closing his office before the inauguration has always been an option, sources believe Smith and his core team will likely keep both Trump cases alive in court for as long as possible, knowing they could find themselves headlong into Trump’s wrath come.

Smith and his team are appealing Judge Aileen Cannon’s decision in July to dismiss the classified documents case against Trump and his two co-defendants, in which she ruled that Smith did not have standing to prosecute. The department is appealing her firing in a broader defense of its ability to use special counsel to isolate politically sensitive investigations. If appeals continue, the issue will likely go to the Supreme Court.

Cannon’s dismissal of the case was not particularly demoralizing for Smith’s office, sources say, in part because some prosecutors realized early on that Cannon would likely be a bad draw for them when she first got the case in 2023.

Still, the prosecution team surrounding the case in Florida was shrinking before Cannon closed the case. One prosecutor who many thought would have tried the case, David Raskin, left Smith’s office before Cannon dismissed the case to oversee Hamas-related and other national security prosecutions led by his own longtime close colleague, now Assistant Attorney General for National Security Matt Olsen. .

In Washington, Smith’s prosecutors are moving forward with the criminal case alleging that Trump orchestrated a conspiracy to overturn the 2020 election after the Supreme Court ruled that Trump had immunity from certain official acts as president.

In recent weeks, the special counsel’s office filed its 252-page brief in an effort to convince the judge and possibly the Supreme Court that Trump’s actions are not immune from prosecution.

That move — a sweeping public presentation of evidence with strong language about Trump’s intentions and culpability — was an example of Smith’s fearless approach, some sources said. Trump’s lawyers have criticized the approach in court as inconsistent with typical case procedure and unfair to Trump as a defendant.

The immunity letter may be the most comprehensive documentation of the January 6 federal criminal case that the public will ever see.

Inside the Justice Department, top leaders are keeping a close eye on the election, knowing they will face unprecedented legal questions if Trump wins.

If Vice President Kamala Harris wins, the choices for the department and the special counsel’s office could be much simpler. The two criminal cases would continue. Individual prosecutors would have to decide whether to stay on the case long enough to bring Trump to trial, which could take years.

Attorney General Merrick Garland has long maintained that the two federal criminal cases against Trump, once indicted, were in the hands of the legal system.

“The matter is now in the hands of the judge to determine when a trial will take place,” he told CNN in January.

In the event that Trump wins, one question will be what to do in court during the presidential transition. The Justice Department has long maintained that it would not prosecute a sitting president while he is in power.

Smith and Justice officials will almost certainly have to seek advice from the department’s Office of Legal Counsel on whether an elected president can be prosecuted, which could prompt the DOJ to set policy for future presidencies as well, they said the people who had been informed about the issue. .

In the Jan. 6 case, prosecutors could also ask the federal judge, Tanya Chutkan, to suspend — essentially put on ice — the case in the months before Trump takes office.

Then, on January 20, when Trump would be inaugurated, the proceedings could become complicated. The Jan. 6 case against Trump is in the hands of Chutkan and approved by a grand jury — two functions of democracy that fall outside the executive branch and the total control of the Justice Department. Prosecutors should ask Chutkan to dismiss the case.

And while the judge will likely do so eventually, Chutkan may not immediately close the case and request additional documents, arguments and information.

“Think of the chaos of it all – he (Trump) would love that,” said one of the former Justice Department officials.

CNN’s Evan Perez contributed to this report.