President-elect Donald Trump projected victory on Tuesday left the legal cases in jeopardy as he prepares to take office.
Trump's federal criminal cases in Florida and Washington, D.C. already had uncertain fates. Special counsel Jack Smith sought to revive the former — dismissed earlier this year — in an appeal to the 11th Circuit Court and re-indicted the latter following a Supreme Court decision on official presidential acts in June. In Georgia, Fulton County District Attorney Fani Willis' election interference case all but ground to a halt as an appeals court agreed to determine whether her relationship with a former lead prosecutor disqualified her from the case. The president-elect's sentencing in New York on 34 felony counts, however, is still scheduled for late November, following previous delays.
Now, in the wake of his electoral win, experts told Salon that Trump's federal cases are essentially dead, and his Georgia trial will likely follow suit while his sentencing in New York is unlikely to amount to little more than a financial slap on the wrist.
"For the most part, his ongoing legal battles are going to disappear," said David Schultz, a professor of legal studies and political science at Hamline University in Minnesota.
"Given the fact that he now has immunity under the Trump v. United States [Supreme Court] case, this potentially frees Trump up to do an awful lot in his second term as president of the United States in ways that he might have been limited because of fear of running for re-election, or because of possible prosecution," he added in a phone interview.
Charges in Trump's Florida federal case, which accused him of illegally retaining national security documents after leaving office and obstructing government efforts to retrieve them, were dismissed in July. U.S. District Court Judge Aileen Cannon ruled in the dismissal that Smith was unconstitutionally appointed to oversee the case in violation of the Constitution's appointments and appropriations clauses. Smith, however, appealed that dismissal days later to the 11th Circuit Court in an effort to restore the case.
Smith's case against Trump in D.C., accusing him of attempting to subvert President Joe Biden's 2020 electoral victory and obstruct Congress' certification of the results on Jan. 6, 2021, was dealt a heavy blow in July when the Supreme Court ruled the former president was broadly immune from official acts conducted within "his core constitutional powers" while in office.
That decision tossed the task of determining which indicted acts constituted official ones back to U.S. District Judge Tanya Chutkan's court. Smith filed a superseding indictment against Trump, which maintained the same four counts, in August that sought to avoid immunity battles by removing allegations about the then-president's communications with White House officials.
Both of those cases will be dismissed with Trump re-entering the White House, said former federal prosecutor Neama Rahmani in a phone interview. Federal prosecutors, who have long had internal guidance against criminally prosecuting a sitting president, are likely to file motions to dismiss the case and appeal. If Smith's office doesn't, Trump can direct his new pick for attorney general to fire the special prosecutor and kill the cases that way.
"It's just a question of whether those cases will be dismissed in November or December or in January," Rahmani told Salon. "But Jack Smith should dismiss those cases."
Given the federal government's practice against criminally prosecuting a sitting president, Rahmani said he expects D.A. Willis to take a similar approach in the Georgia case. Bennett Gershman, a Pace University law professor and former New York prosecutor said, however, that such an outcome is unlikely.
"The Georgia case will still be prosecuted by Fani Willis, who was reelected yesterday, and there is no reason to think she will abandon the case," Gershman told Salon in an email. "In fact, there is every reason to think she will move ahead aggressively."
The Fulton County district attorney charged Trump and 18 others, some of whom later accepted plea deals or had charges dropped, in a sprawling racketeering indictment last August, accusing them of conspiring to overturn the 2020 election results in Georgia. The case was derailed in the spring over allegations that Willis financially benefitted from her romantic relationship with a special prosecutor she hired to work on the case. Though the Trump legal team's bid to have her disqualified from over the claims failed, the decision is now on appeal with proceedings in the trial court paused as it proceeds.
Schultz said that he expects Trump's legal team to request the case be put on hold until after his presidency because Trump will be "too distracted" with his presidency to continue with the prosecution once he takes office.
Rahmani added that the case can't reasonably be paused for the duration of Trump's presidency because he, like any other criminal defendant, has a right to a speedy trial. Should Willis proceed with the case, she'd likely have to dismiss it and refile it later, but by then the statute of limitations to prosecute will have run out.
What comes of Trump's criminal case in New York is more complicated because a jury has already convicted him, he said.
The president-elect was convicted in May of 34 felony counts of falsifying business records in a plot to cover up a hush-money payment to an adult film star, with his sentencing originally scheduled for mid-July at the conclusion of a trial characterized by gag order violations, attacks on uninvolved parties and shaky defense. Despite delays in his sentencing date — first pushed to mid-September before New York Supreme Court Justice Juan Merchan rescheduled it again for Nov. 26 — proceedings in Trump's New York criminal case will continue.
Merchan said he will decide on Trump's motion to vacate the guilty verdict based on the Trump v. United States decision, which also barred evidence of official acts from being introduced during criminal proceedings, on Nov. 12, according to CNN. Trump's legal team argues that the introduction of evidence, such as Trump's tweets while in office and communications with former White House aide Hope Hicks, during the New York proceedings should now be grounds for dismissal or a retrial.
"There obviously will be strident arguments by Trump’s lawyers to either have the sentencing delayed until after Trump leaves office in four years or to dismiss the case outright. There will be arguments over presidential immunity and the claimed impossibility of Trump serving a sentence while president," Gershman said. "But I think the arguments to delay or drop the sentence are baseless. The execution of the sentence will almost certainly be delayed while Trump appeals the conviction, and that will be a lengthy process."
Rahmani said he has always expected Trump would ultimately evade prison time (he could be sentenced to up to four years) because his charges constituted the lowest possible felonies in New York, he has no criminal history and it would be near impossible to imprison a former president with Secret Service protection.
"Now that he's president-elect it makes it even less likely," Rahmani said. "Judge Merchan didn't jail Trump for 10 full violations of his gag order, he's not going to sentence him to any time. He'll probably be fined, and that will be the end of it."
While Schultz agreed and raised the possibility of a "minor probation," Gershman argued that Merchan could impose a prison sentence of six to 24 months, citing Merchan's sentencing of ex-Trump Organization CFO Allen Weisselberg to five months for "conduct far less heinous than Trump’s."
Asked what he took away from the ways Trump's various legal battles played out over the last several months, each legal expert named different points of contention.
Gershman decried the "repetitive legal ploys, frivolous arguments and gamesmanship" Trump's legal team engaged in to delay his cases and the Supreme Court and Judhge Cannon's role in making the lawyers' gambit "a huge success." Rahmani bemoaned the years it took Willis and Smith to hand down their indictments as well as Willis' mid-case scandal.
Schultz noted Trump's effectiveness in leveraging the cases and proceedings to his advantage in fundraising and campaigning.
"Democrats made a huge mistake thinking that his legal problems would be his demise, that there would be multiple trials, he'd be convicted multiple times, or be so bogged down with his criminal trials that he would eventually be unable to mount an effective campaign," he said. "In fact, all the evidence is suggesting that he turned all those indictments into assets."
