by John Solomon and Jerry Dunleavy
Jack Smith’s team primed their criminal case against Donald Trump to resume once his presidency ends.
In the final weeks of Joe Biden’s presidency, FBI agents tied to Justice Department special counsel Jack Smith’s investigation memorialized anew their belief that President Donald Trump broke the law in contesting the 2020 election and secretly arranged to preserve their evidence until 2030 in memos that raise alarm they could revive their prosecution after Trump leaves office.
The FBI memos and emails closing out the controversial Arctic Frost investigation – obtained by Just the News – show the bureau chose not to relinquish the evidence it gathered after Smith went to court to dismiss charges against Trump, even though that is the normal practice for agents. Instead, they created a preservation order keeping the evidence in FBI custody for two years after Trump's second term ends, claiming it was necessary to do so because of ongoing litigation, the memos show.
FBI emails and memos obtained by Just the News dating back to early 2025 show how the FBI agents and DOJ prosecutors who had been working on the criminal prosecutions aimed at Trump and his allies worked to close the 2020 election-related case against the incoming president, while also seemingly leaving open the door for the criminal case to be revived once Trump leaves office and a Democrat again holds the reins at the Justice Department.
“The American people deserve to know how this egregious weaponization of power to target political opponents and President Trump happened inside an institution meant to protect them,” FBI Director Kash Patel told Just the News. “We shut down the weaponized CR-15 squad, and we are going to keep following the facts until there is full accountability. The FBI exists to protect the country, not to preserve political prosecutions for a future administration.”
Following Trump’s victory in November 2024 over Democratic presidential nominee Vice President Kamala Harris, Smith sought to dismiss his case against Trump “without prejudice” – leaving open the possibility that the charges could be refiled in the future.
U.S. District Judge Tanya Chutkan, appointed to the federal bench by President Barack Obama, pointed to the Office of Legal Counsel’s position that a sitting president could not be prosecuted by his own DOJ and granted Smith’s request to dismiss the case without prejudice.
One of the key “Case Closing” documents obtained by Just the News – originating from the FBI's Washington Field Office’s CR-15 team – was dated a couple of weeks into Trump’s second term, on February 5, 2025, when many holdover FBI agents and leaders were still in place.
The newly-released closing document from early 2025 repeated the extensive claims of criminality against Trump, which had been pursued by Smith and the bureau, and it sought to retain all of the evidence for a half decade until at least February 2030, when Trump would be a former president once more and thus when the DOJ guidance prohibiting the prosecution of a sitting president would no longer be in force.
The document was titled “Arctic Frost – Election Law Matters – Sensitive Investigative Matter” and its synopsis was “To Document the Closing of Captioned Investigation.” The listed enclosures buttressing the document were a “Deputy Special Counsel Concurrence” and the “Retention of Evidence Approval.”
The FBI record states, “This Electronic Communication seeks approval to close the captioned full Sensitive Investigative Matter investigation” and argued that “because this was a SIM opened by a Field Office and involved a presidential candidate, the same level of approval required to open the investigation is also required to close the investigation.”
Evidence released last year showed that then-Attorney General Merrick Garland, then-Deputy Attorney General Lisa Monaco, and then-FBI Director Christopher Wray signed off on the launch of the Arctic Frost inquiry into Trump related to the Jan. 6, 2021, Capitol riot.
Garland also quickly said he “personally approved the decision to seek a search warrant” for the FBI’s unprecedented raid of Trump's Mar-a-Lago estate in 2022. The Biden White House was also directly linked to the classified documents investigation into Trump, despite its denials, previously-released records show.
“The approval roles on this closing EC match those of the opening EC and, as such, Washington Field Office is seeking approval up to and including the Director of the FBI to close this investigation,” the newly released FBI document said.
The document included a “Summary of the Results of the Investigation” into Trump, which had been pursued by Smith and the FBI, arguing that “the captioned FBI investigation was opened based on specific and articulable facts and circumstances that individuals affiliated with Donald J. Trump for President, Inc. (the ‘Trump Campaign’) engaged in activity that violated federal law.”
The FBI memo alleged that “the investigation revealed that when Donald J. Trump lost the 2020 presidential election, he resorted to crimes to try to stay in office. With various co-conspirators, Trump launched a series of plans to overturn the legitimate election results in seven states that he had lost – Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.”
The bureau record also alleged that “Trump and his co-conspirators used knowingly false claims of election fraud in furtherance of three conspiracies: 1) a conspiracy to interfere with the federal government function by which the nation collects and counts election results, which is set forth in the Constitution and the Electoral Count Act; 2) a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results of the presidential election; and 3) a conspiracy against the rights of millions of Americans to vote and have their votes counted.”
The section on the “Disposition of Evidence” related to Smith’s anti-Trump investigation argued that “this investigation is subject to a litigation hold and is on the freeze list; as a result, no evidence can be returned or destroyed and must be retained.”
The FBI memo said that FBI assistant special agent in charge approval “to retain all evidence notwithstanding closure” of the case was obtained “as required” by the FBI’s Field Evidence Management Policy Guide.
“The Retention EC specifies that the evidence will be retained until at least February 1, 2030, but in no case prior to the lift of the freeze and litigation hold and that the Special Counsel's Office concurred with the retention of evidence,” the FBI memo said.
“A prosecutor’s job is to gather facts discreetly, apply the law fairly, and decide whether a case should be brought," Bud Cummins, a former U.S. Attorney in the Eastern District of Arkansas, recently told Just the News. "If the case cannot or should not be prosecuted, the prosecutor should close the file — not write a political narrative, preserve a roadmap, and leave behind a prosecution kit for future use."
"The Jack Smith model turns prosecutorial discretion upside down: When the courtroom is unavailable, the report becomes the weapon," Cummins added. "That is not neutral law enforcement; it is yet another in a long line of blows to the credibility of the Department of Justice.”
The “Summary of the Reason for Closing” the anti-Trump inquiry was also laid out in the newly-released FBI memo.
“As a result of the November 5, 2024 election, Trump is now president-elect and will be inaugurated as president on January 20, 2025,” the FBI memo said. “As a result of the Department of Justice, Office of Legal Counsel's opinion that a sitting president cannot be federally indicted and prosecuted, the United States moved to dismiss the Indictments without prejudice before Trump's inauguration. On November 25, 2024, the District Court granted the Government's unopposed motion and dismissed the Indictments without prejudice.”
The FBI memo also included a “Department of Justice Concurrence” written by an unnamed “Deputy Special Counsel” for Smith dated January 8, 2025, just a couple weeks prior to Trump’s second inauguration.
The Smith deputy special counsel is identifiable from the documents as former DOJ prosecutor J.P. Cooney, who is now a candidate in a Democratic primary to be a congressman in Virginia.
“Cooney served as a supervisor in the Department of Justice’s Public Integrity Section and as Chief of the Fraud and Public Corruption Section of the U.S. Attorney’s Office in Washington, D.C. before joining Jack Smith’s Special Counsel’s Office to help lead the investigations and prosecutions of President Donald Trump,” Cooney’s campaign website says.
“As Principal Deputy to Special Counsel Jack Smith, Cooney was a lead prosecutor in both criminal prosecutions of President Trump for retention of classified documents and efforts to overturn the results of the 2020 election.”
The FBI memo quoted extensively from the Smith deputy special counsel – Cooney – who had written to the FBI’s Washington Field Office in January 2025 that "the SCO has submitted a final confidential report to the Attorney General, has concluded its work, and is winding down the office” and that “under the circumstances, the SCO must decline further prosecution of the FBI’s Arctic Frost Investigation, and we do not object to FBI closing the case file.”
“As stated in public filings, the SCO dismissed the case against Donald Trump based on his impending inauguration as president, consistent with the Department’s longstanding policy prohibiting the indictment and prosecution of a sitting president; the dismissal was not based on the merits of the prosecution, which the SCO stands behind,” Cooney had written, according to the FBI. “Because the SCO reached no final conclusions [regarding the prosecution of co-conspirators], our declination of further prosecution should not be read to exonerate any particular person."
Cooney’s email to the FBI closely tracks the sentiments expressed in a letter that Smith sent to Garland the day prior as he sought the release of his final report.
Then-Trump defense lawyer Todd Blanche, now the acting U.S. attorney general, wrote to Garland to block the release of Smith’s report.
“As you know, Courts in Florida and the District of Columbia have now dismissed both of Jack Smith's failed cases against President Trump,” Blanche told Garland on January 6, 2025. “Rather than acknowledging, as he must, President Trump's complete exoneration, Smith now seeks to disseminate an extrajudicial ‘Final Report’ to perpetuate his false and discredited accusations.”
Smith retorted in a letter the next day to Garland, saying, “Mr. Trump's letter claims that dismissal of his criminal cases signifies Mr. Trump's ‘complete exoneration.’ That is false. As the Office explained in its dismissal motions and in the Report, the Department's view that the Constitution prohibits Mr. Trump's indictment and prosecution while he is in office is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution-all of which the Office stands fully behind.”
The newly-public FBI memo left out exactly one piece of Cooney’s own January 2025 email, according to another FBI memo obtained by Just the News, in which he doubled down on arguing that Trump was a criminal, stating that “I note that Mr. Trump was charged with participating in crimes with at least six co-conspirators.”
Another related closure memo from the FBI obtained by Just the News – dated January 10, 2025 – was specifically penned by the Washington Field Office “To Document ASAC Approval to Retain All Evidence.”
The memo also said that “the anticipated disposition date is no earlier than February 1, 2030, but in no case prior to the lift of the freeze and litigation hold” and that “the Deputy Special Counsel concurs with this request.”
The FBI memo again stressed Cooney’s argument that "the dismissal was not based on the merits of the prosecution, which the SCO stands behind” and that "declination of further prosecution should not be read to exonerate any particular person."
This bureau memo also quoted a message written by the Smith deputy special counsel purportedly on January 8, 2024 (but likely actually the same date in 2025), in which he said that "under the circumstances, and in accordance with the litigation hold requiring the preservation of materials related to the SCO’s work, the SCO concurs with FBI retaining evidence in the Arctic Frost Investigation/SCO Election Interference Investigation."
The FBI said that it would be retaining evidence including but not limited to search warrant material, interview recordings, voluntary productions, grand jury material, open-source downloads, and a compilation of all discovery provided to Trump during the prosecution of him by the Biden DOJ.
An FBI memo from the Washington Field Office dated September 30, 2025, indicated that “FBI Acting Director Daniel J. Bongino and Attorney General Pamela Bondi approved closing the captioned investigation.”
“Based on the signed approval of FBI Acting Director Daniel
J. Bongino and Attorney General Pamela Bondi, the undersigned
respectfully requests to close the captioned full SIM investigation
while retaining the evidence in the FBI's custody and control,” an FBI
official wrote.
The FBI raided
Trump’s Florida resort home in August 2022 with the authorization of
Garland. The Biden attorney general then picked Smith in November 2022
to lead the twin criminal investigations into Trump related to
classified documents and the Capitol riot.
Garland’s appointment order for Smith in November 2022 said the special counsel was “authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” Smith was “further authorized to conduct the ongoing investigation” related to the FBI raid of Mar-a-Lago.
Members of the Biden White House and leaders at the Biden-era Justice Department and FBI were all involved in efforts linked to the launch of the Arctic Frost investigation, which targeted then-former President Trump and his political allies over the events related to the riot.
Smith indicted Trump in August 2023 related to the then-former president’s alleged actions related to the 2020 election, with superseding charges in August 2024. Smith contended that Trump “pursued unlawful means of discounting legitimate votes and subverting the election results.”
The FBI’s Arctic Frost investigation also targeted dozens of GOP officials and organizations.
Trump and other Republicans have repeatedly alleged that Smith and the FBI were themselves engaging in election influence by trying to bring charges, hold trials, and obtain convictions against Trump ahead of the 2024 election.
John Solomon and Jerry Dunleavy
Source: https://justthenews.com/government/courts-law/fbi-and-jack-smith-prosecutor-sought-hold-anti-trump-evidence-until-he-left
