According to news reports, special counsel Jack Smith is in talks with the Department of Justice about winding down his cases against Donald Trump. In the case pending in the District of Columbia involving Trump’s efforts to overturn the 2020 election, U.S. District Court Judge Tanya S. Chutkan has granted Smith until Dec. 2 to advise the court on how the government intends to proceed. Given the reporting, it seems likely that Smith will seek to dismiss the charges against Trump and resign his office before Trump is sworn in as president in January. Why would Smith do that, rather than insist that Trump fire him and take the political heat for doing so? Why preemptively dismiss the charges he has worked so tirelessly to bring to trial? Under Department of Justice policy, the cases cannot proceed against Trump while he is in office, but Smith could leave it to Trump and his attorney general to dismiss the charges rather than doing so in advance. There are a few possible answers. The first is that resigning now allows Smith to maintain control over his exit, including the production of a confidential report explaining his prosecution and declination decisions that he is required to provide to the attorney general at the conclusion of his work. Under the regulations governing the special counsel’s appointment, the attorney general has the authority to determine how much of that report to make public. As the nation saw when special counsel Robert Mueller turned over his report to then Attorney General William Barr, the attorney general can serve as a bottleneck, preventing much of the report’s release and can shape the narrative about the report by how he chooses to present it to the public. Attorney General Merrick Garland has pledged the utmost transparency in releasing the report, giving Smith ample motivation to conclude his work and issue his report under Garland’s watch. That report provides Smith with one last opportunity to provide the American people, and posterity, with a detailed account of Trump’s alleged crimes and to explain why he was unable to bring them to trial, which has nothing to do with the merits of the case and everything to do with Trump running out the clock. Second, dismissing the charges now, while Smith can seek a dismissal without prejudice, allows for the possibility that they could be reinstated at a future date after Trump leaves office. The likelihood of the case being revived seems remote for a variety of reasons, including potential statute of limitations problems — although the Department of Justice memo setting forth the policy against prosecuting a sitting president suggests that a court might deem the statute of limitations tolled during the presidency. The evidence would be stale, the public might be fatigued and Trump would be at least 82 years old. Thus, a future prosecutor might well decide that a renewed prosecution would not be in the public interest. But from a rule of law perspective, leaving the door open to potential future prosecution, even if it is largely symbolic, is preferable to giving Trump a pass for all time. If Smith leaves without dismissing the charges, the Trump administration would immediately move to dismiss the case with prejudice, such that it could not ever be revived. Dismissals require the approval of the U.S. District Court, so prosecutors do not have the final word on whether they are granted and whether they are with prejudice. But by handling the dismissal himself, Smith increases the odds that the dismissal, at his request, would be without prejudice. Third, Smith could use his final act as special counsel to remind the country of what it means to be guided by professional norms. Just as Vice President Kamala Harris conceded the election to Trump once the results were in, and President Joe Biden invited Trump to the White House to begin the transition, Smith could set a powerful example of how leaders act when they feel themselves to be constrained by traditions and values that go beyond raw political will or even the hard requirements of law. Trump has damaged these norms immeasurably, but that does not mean that others in public service must follow suit. The Department of Justice policy against prosecuting a sitting president is not a law, but the special counsel experiences it as binding, nevertheless. If the country is to be saved from Trump’s worst tendencies in his second term, it will be in large part because other public servants similarly abide by professional norms and values. The top Department of Justice officials did so at the end of the first Trump administration when they threatened to resign en masse if necessary to prevent Trump from using the department to further his scheme to overturn the 2020 election. Smith voluntarily conforming to long-standing DOJ policy before anyone makes him would be in the finest tradition of the office. Jessica A. Roth is a former federal prosecutor and criminal law professor at the Cardozo School of Law in New York City.  Submit a letter, of no more than 400 words, to the editor here or email [email protected].