When Donald Trump became the first convicted felon to win the presidency after a decisive election, he also pulled a Get Out of Jail Free card from a deck that, prior to the election, appeared to be stacked against him.
Before Trump steps into the Oval Office for a second time, he will need to resolve a bevy of legal issues including a conviction for 34 felony counts of falsifying business records. But his ascension to the presidency—and the powers associated with it—mean those legal troubles will essentially vanish, legal experts say.
“Basically, his criminal problems have gone away,” Neama Rahmani, a former federal prosecutor and president and cofounder of West Coast Trial Lawyers, told Fortune.
Using powers he will inherit as president, as well as reaping the rewards of his lawyer’s past strategies and a little luck, Trump will return to the position as commander-in-chief with a clean legal slate. The biggest ‘if’ of his future criminal court proceedings is the timeline on which these cases will be dismissed, Rahmani argued.
“The question is, Will they go away now, November, or December, or January when Trump takes office?” he said.
Trump’s office did not immediately respond to Fortune’s request for comment.
Federal cases
Come Inauguration Day, Trump will essentially inherit the powers of the Justice Department, which is headed by the attorney general, who reports directly to the president. That means it’s only a matter of one quick call to have all the federal cases against him dismissed.
During the lame duck period following the 2020 election, Trump’s fervent denial of Joe Biden’s victory culminated in a swarm of Trump supporters mobbing the U.S. Capitol building in a violent insurrection. Federal prosecutors, led by special counsel Jack Smith, charged Trump with four felony counts, including obstructing official proceedings and conspiracy to defraud the country.
Smith also accused Trump of taking with him highly sensitive documents when he left the White House in January 2021, alleging the president-elect stashed the classified papers in his Mar-a-Lago home and showed them to government officials not authorized to see them. Smith charged Trump with 40 felony counts, 32 of which included “willful retention” of government documents under the Espionage Act.
With Smith at the center of both cases against Trump, all the president-elect needs to do to have the cases dismissed is to fire the special counsel through his attorney general, Lawrence Douglas, Amherst College law professor and author of Will He Go: Trump and the Looming Election Meltdown in 2020, told Fortune. Trump explicitly said he’d fire Smith “within two seconds” of returning to the presidency, leaving no one authorized to bring the cases forward. Firing Smith also allows Trump to not have to pardon himself, a heavily speculated action that would call into question constitutional concerns, Douglas said.
But Trump also benefited from the strategy of his lawyers, who brought his cases to a standstill, as well as having federal judge Aileen Cannon—who Trump appointed—overseeing court proceedings regarding Trump’s classified-documents case.
“Trump’s lawyers also did a masterful job of delaying the prosecutions—all three prosecutions—filing motions to dismiss, appealing every issue, and that's why they won,” Rahmani said. “And they didn’t just win politically, but legally.”
State cases
Trump’s path to avoiding legal consequences in his state cases is more complicated. Trump is awaiting sentencing following a New York hush-money case, which found Trump guilty of 34 felony counts, including violating the state’s corporate record-keeping laws. Trump bought the silence of adult film actress Stormy Daniels, with whom he allegedly had an affair, through the use of falsified business records. Trump’s attorney Michael Cohen sent Daniels $130,000 in hush money, which Trump reimbursed through payments from his own company.
The president-elect now awaits sentencing for his conviction scheduled for November 26, but Americans are not going to see Trump behind bars anytime soon, in part because he’s a first-time felon, and also because a judge would suspend a prison sentence to allow Trump to fulfill his presidential duties.
A spokesperson from special counsel Smith’s office cited to Fortune a line from a 2000 memorandum, outlining “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
“You're not going to have a situation in which the desk from the Oval Office is being brought into a prison cell,” Douglas said.
Trump also faces an indictment in Georgia, which alleged that Trump spread lies about rampant voter fraud in Georgia after Biden won the state in the 2020 election. Trump called Georgia Secretary of State Brad Raffensperger, asking him to “find” almost 12,000 votes that would give Trump a leg-up over Biden in the state. Fulton County district attorney Fani Willis charged Trump with conspiracy to defraud the U.S. and obstruct official proceedings.
But the case is frozen in a lucky break from Trump: Willis allegedly had an affair with Nathan Wade, a special prosecutor she hired, presenting a financial conflict of interest. Should the case resume following an appealed decision by Trump to disqualify Willis, it’s still unlikely to imminently impact Trump. The case would create an unappealing “political firestorm,” Douglas argued, and would once again prevent Trump from fulfilling his duties as president. By the time Trump’s second term is over, too much time will have passed for the case to fairly resume.
“The case can't be put on hold for four years because Trump has the right to speedy trial like any other criminal defendant,” Rahmani said. “You might as well just dismiss it now.”
New precedents
The outcomes of Trump’s criminal battles have set one major legal precedent in the form of the Supreme Court’s decision to broadly define presidential immunity, but Douglas suggested it also sends a clear message to American politicians.
“It seems to stand for the proposition that someone with enough political power and support can basically declare himself above the rule of law,” he said.
Historically, there’s been two ways for heads of state to be held accountable for criminal actions, Douglas argued. The first is through impeachment, which Trump escaped from unscathed twice. The second is through the criminal-justice system, which, unless several legal experts are proven wrong, is unlikely to punish Trump further.
While Trump’s example lays a foundation of how similar commanders-in-chief will or will not be confronted on alleged criminal wrongdoings, Trump has not just set a future precedent—he’s also set a precedent for his own upcoming second term.
“What precedent does this establish for Trump himself as he exercises power in his second term?” Douglas said. “It certainly will not be lost on him that he has basically been able to escape any kind of reckoning with his behavior.”
