Now that Donald Trump has won the White House for a second time, the path ahead seems clear for him to brush off key federal criminal indictments that have dogged him for years while potentially delaying other cases he faces in state court.
By securing the presidency, he can use the awesome powers of the executive to seemingly shield from scrutiny any illegal conduct that he would deem part of his “official” duties.
When the US Supreme Court enshrined immunity for official acts of former presidents and “at least presumptive immunity” for acts on the outer perimeter of official duties, the majority did so amid the dissent of the three liberal justices.
When reading her dissent aloud from the bench in July, Justice Sonia Sotomayor had bristled: “Ironic isn’t it? The man in charge of enforcing laws can now just break them.” When writing her dissent, which was joined by Justices Elena Kagan and Kentanji Brown Jackson, she concluded that the court had henceforth created a “law-free zone around the president, upsetting the status quo that has existed since the founding.”
And now Trump is heading back to that “law-free zone.” Here’s the state of his ongoing cases and how they will likely proceed:
The January 6 Case
Special counsel Jack Smith’s criminal prosecution of Trump for his alleged conspiracy to overturn the results of the 2020 election on January 6, 2021, is likely first on the chopping block, considering that Trump has both vowed to fire Smith in “two seconds” and threatened to throw him “out of the country.”
Trump faces four felony charges in the Washington, DC, case: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and, for his alleged intimidation of voters, conspiracy against rights.
Trump has vowed for over a year to see the federal insurrection case dismissed. He has argued that Smith’s appointment is unconstitutional and that he has been vindictively prosecuted. Most important, he has argued that his conduct on and before the January 6 attack on the US Capitol was official and therefore protected by presidential immunity.
The Supreme Court found in July that former presidents cannot be charged for any “official” conduct but that anything that falls beyond the scope of “official” duties is fair game. This decision forced Smith to revise Trump’s indictment before presiding U.S. District Judge Tanya Chutkan.
Chutkan signed an order on Oct. 28 that granted Trump until Nov. 21 to file a motion explaining why the case should be dropped on presidential immunity grounds, and Smith’s team did not oppose that request. Before his victory, Chutkan was in position to weigh both arguments and decide which changes would stay or go based on the immunity ruling. As of October, deadlines in the case were still set for well into December. Trump was widely expected to appeal any ruling that did not wipe away the charges anyway, eventually putting the matter back before the Supreme Court, but now all of that looks to be essentially moot.
Under Justice Department policy established in the 1970s, sitting presidents cannot be indicted because it would interfere with their duties.
The election interference case is expected to be dropped as soon as Trump is inaugurated. The only thing standing in the way of that outcome is an attempt by the judge to reject any dismissal effort by the Justice Department or, if Smith is fired, an attempt by Congress to see the special counsel restored.
The Classified Documents Case
Trump was accused of hoarding classified records at his Mar-a-Lago estate in Florida after he left the White House in 2021.
The 37-count case was dismissed less than two weeks after the Supreme Court’s immunity ruling because US District Judge Aileen Cannon found that Attorney General Merrick Garland did not have authority to appoint Smith to prosecute Trump. The decision was controversial, and Smith appealed, citing decades of contrary legal precedent. Oral arguments for the appeal haven’t been scheduled yet.
Once Trump takes office, he needs only to turn to prosecutors at the Justice Department and encourage them to drop the case. Notably, ABC News reported shortly before Election Day that Trump had floated the idea of Cannon replacing Garland as attorney general.
State Cases
Trump was convicted in May on 34 felony counts of falsifying business records after a jury in New York determined he made illegal sought to conceal hush money payments to adult film star Stormy Daniels just before the 2016 election.
Trump is scheduled for sentencing in this matter on November 26 before Judge Juan Merchan.
But because presidents don’t have the authority to interfere with or stop state prosecutions, there’s not much Trump can do to make the case disappear during his presidency. However, his sentencing will likely be delayed indefinitely — or at least until 2029, when his term in office would end.
Trump still faces eight felony charges in Fulton County, Georgia, for allegedly criminally conspiring to overturn the state’s election results and engaging in a racketeering conspiracy with a slew of his allies and advisers that state prosecutors say were hellbent on advancing bogus electoral slates for Trump — even after it was clear Democrat Joe Biden had won the presidential vote in Georgia.
The case was thrown off track this year after Trump’s co-defendant Michael Roman alleged that Fulton County prosecutor Fani Willis had an improper romantic relationship with Nathan Wade, the lawyer Willis tapped to lead the probe into the alleged conspiracy. Arguments on whether Willis should be disqualified do not get underway at the Georgia Court of Appeals until December, and a decision could take months.
With Willis declared as winner in her reelection bid Tuesday night, the indictment is expected to stay on ice.
Pardon Power
No president in US history has ever attempted to pardon himself for any crimes, federal or state. And although the Justice Department has guidance on presidential pardons, the guidance is exactly that — guidance. It is not a hard and fast law that presidents cannot pardon themselves. (However, presidents don’t have the authority to interfere with or stop state prosecutions, so Trump cannot pardon himself from his criminal conviction in New York.)
Rather, there is only a Justice Department memo that was released in 1974 before Richard Nixon resigned the presidency amid the Watergate scandal. The memo states that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” If Trump wanted to litigate that before the Supreme Court, it would be his right.
The Constitution does not address whether presidents can self-pardon. But some legal analysts, including those with the Cato Institute, a libertarian think tank, have suggested it could be an impeachable offence for a president to do so.
