Now that Donald Trump has won the White House for a second time, the path appears clear for him to shake off major federal criminal charges 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 branch to seemingly shield from investigation any illegal behavior he considers part of his “official” duties.
When the U.S. Supreme Court enshrined immunity for official acts by former presidents and “at least presumptive immunity” for acts that went beyond official bounds, the majority did so amid the dissenting opinions of the three liberal justices.
When Justice Sonia Sotomayor read her dissent aloud from the bench in July, she said:Ironic, isn’t it? The man responsible for enforcing the laws can now simply break them.” When writing her dissent, which was accompanied by Justices Elena Kagan and Kentanji Brown Jackson, she concluded that the The court had henceforth created a “law-free zone around the president, disrupting the status quo that had existed since its inception.”
And now Trump is going back to that ‘law-free zone’. Here’s where his current affairs stand and how they’re likely to play out:
The case of January 6
Special Counsel Jack Smith’s criminal prosecution of Trump over his alleged conspiracy to overturn the results of the 2020 election on January 6, 2021 is likely to be first on the chopping block, as Trump has both vowed to fire Smith in “two seconds‘ and threatened to ‘throw him out of the country’.
Trump is facing four felony charges in the Washington DC case: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempted obstruction of an official proceeding and, for his alleged voter intimidation, conspiracy against rights.
Trump has vowed for more than a year to dismiss the federal insurrection case. He has argued that Smith’s appointment is unconstitutional and that he has been vindictively prosecuted. Most importantly, he has argued that his conduct on and before the Jan. 6 attack on the Capitol was official and therefore protected by presidential immunity.
The Supreme Court ruled in July that former presidents cannot be charged for any “official” conduct, but that anything outside the scope of “official” duties is fair game. The decision forced Smith to review Trump’s indictment before U.S. District Judge Tanya Chutkan presided.
Chutkan signed an order on October 28 that gave Trump until November 21 to file a motion explaining why the case should be dismissed on presidential immunity grounds, and Smith’s team did not oppose that request. Before his victory, Chutkan was in a position to weigh both arguments and decide which changes would stay or go based on the immunity rule. As of October, deadlines in the case were still set well into December. It was widely expected that Trump would appeal any ruling that didn’t wipe out the charges, eventually taking the case back to the Supreme Court, but now that all seems essentially moot.
Under Justice Department policy from the 1970s, sitting presidents cannot be indicted because it would interfere with their duties.
It is expected that the election interference case will be dismissed once Trump is inaugurated. The only thing standing in the way of that outcome is an attempt by the judge to reject any dismissal attempt by the Justice Department or, if Smith is fired, an attempt by Congress to reinstate the special counsel.
The Secret Documents Case
Trump was accused of hoarding classified documents at his Mar-a-Lago estate in Florida after leaving the White House in 2021.
The 37-count case was dismissed less than two weeks after the Supreme Court’s immunity ruling because U.S. District Judge Aileen Cannon ruled that Attorney General Merrick Garland did not have the authority to appoint Smith to prosecute Trump. The decision was controversial and Smith appealed, citing decades of conflicting legal precedent. No oral arguments for the appeal have yet been scheduled.
Once Trump comes into power, all he has to do is turn to Justice Department prosecutors and encourage them to drop the case. Remarkably, ABC News reports this Shortly before Election Day, Trump had floated the idea of Cannon replacing Garland as attorney general.
State affairs
Trump was convicted in May on 34 felony counts of falsifying business records after a New York jury found he illegally made and tried to conceal hush money payments to adult film star Stormy Daniels just before the 2016 election.
Trump will be sentenced in the case on November 26 before Judge Juan Merchan.
But because presidents don’t have the power to interfere with or stop state prosecutions, there’s not much Trump can do to make the case go away during his presidency. However, his sentencing will likely be postponed indefinitely – or at least until 2029, when his term would end.
Trump still faces eight felony charges in Fulton County, Georgia, for allegedly criminally conspiring to overturn the state’s election results and for engaging in a racketeering conspiracy with a slew of his allies and advisers that prosecutors say they were determined to advance bogus election plans for Trump – even after it was clear that Democrat Joe Biden had won the presidential election in Georgia.
The case was dropped this year after Trump’s co-defendant Michael Roman alleged that Fulton County Prosecutor Fani Willis had an inappropriate romantic relationship with Nathan Wade, the attorney Willis retained to lead the investigation into the alleged conspiracy. Arguments over whether Willis should be disqualified won’t begin until December at the Georgia Court of Appeals, and a decision could take months.
Now that Willis has been declared the winner in her re-election bid on Tuesday night, the charges are expected to remain on ice.
Excuse power
No president in US history has ever tried to pardon himself for any crime, whether federal or state. And while the Justice Department has guidance on presidential pardons, the guidance is just that: guidance. It is not a harsh law that presidents cannot forgive themselves for. (Presidents, however, do not have the power to interfere with or stop state prosecutions, so Trump cannot pardon himself for his criminal conviction in New York.)
On the contrary, there is only a Ministry of Justice memo which was released in 1974 before Richard Nixon resigned as president amid the Watergate scandal. The memo states that “under the fundamental rule that no man shall be a judge in his own cause, the President cannot pardon himself.” If Trump wanted to litigate this before the Supreme Court, that would be his right.
The Constitution does not address the question of whether presidents can pardon themselves. But some legal analysts, including those at the Cato Institutea libertarian think tank, have suggested that it could be an impeachable offense for a president to do so.
