In almost an instant, former President Donald Trump’s criminal (mis)fortunes have been transformed.
The next president of the United States is still technically facing criminal sentencing in his New York hush money case on Nov. 26, but Trump’s Tuesday night victory means Judge Juan Merchan faces the unprecedented question of whether it’s possible to sentence a president-elect who is preparing for office.
Even if sentencing does go forward, legal experts widely agree that a sentence that significantly interferes with the presidency is off the table. Before Tuesday, Trump was facing a potential prison sentence – although probation was also an option.
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“At this point, the NY convictions obviously don’t matter,” Asha Rangappa, a lawyer and former FBI special agent who is now assistant dean at Yale University’s Jackson School of Global Affairs, posted on X.
And that’s just Trump’s New York case. His return to the White House also means Trump can tell the Justice Department to drop his two federal criminal indictments, one over his efforts to overturn the 2020 election and the other over his hoarding of classified documents.
“Now that Trump has won, his criminal problems go away,” said Neama Rahmani, a former federal prosecutor who is now president of West Coast Trial Lawyers. “It’s well established that a sitting president can’t be prosecuted, so the election fraud case in D.C. District Court will be dismissed, and the DOJ will abandon its Eleventh Circuit appeal of the dismissal of the classified documents case.”
Trump himself has said he could shut down the prosecutor in his federal cases, Justice Department special counsel Jack Smith. “It’s so easy − I would fire him within two seconds,” Trump told radio host Hugh Hewitt on Oct. 24.
Finally, there is the Georgia indictment charging trump with 2020 election interference. That, too, would run into legal questions about whether a state criminal case can go forward if it interferes with the presidency.
“Trump, like any criminal defendant, has a right to a speedy trial, so staying or putting the cases on hold for four years until he is out of office would not be an option, either,” Rahmani said of the Georgia case.
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But the status of the state cases − the New York sentencing and Georgia trial − are uncertain.
“I think we are in uncharted territory,” said Cardozo Law School of Law professor Alexander Reiner about how state courts would navigate a defendant who resides in the White House.
Here iswhere Trump’s pending criminal cases stand and where they go from here:
Looming sentencing in NY hush money case
Trump is scheduled for sentencing Nov. 26 after a jury found him guilty on 34 counts of falsifying business records to cover up hush money payments made to porn star Stormy Daniels ahead of the 2016 election. However, his lawyers may soon argue that forging ahead would violate the Constitution by unlawfully interfering with his responsibilities as president-elect, and later as president.
The Justice Department made a similar argument in a 2000 memo that prosecuting a sitting president “would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties.”
Department policy isn’t binding on a state prosecution or state court. However, prosecutors would likely avoid encroaching on the powers of the federal government, which has supremacy under the Constitution.
“There’s a sense out there that they would follow the norm of the feds and therefore delay … the sentencing in the New York case until after he finished his presidency,” Robert Weisberg, a Stanford law professor who teaches criminal law and procedure, told USA TODAY.
The immunity question
Becoming president isn’t Trump’s only argument to avoid his Nov. 26 day in court.
Judge Merchan is scheduled to rule Nov. 12 whether Trump’s May criminal conviction can stand in the wake of the Supreme Court’s subsequent presidential immunity rulingprohibiting certain evidencefrom a president’s official acts from being used to prosecute him or her.
Trump argues that his conviction – and even his indictment – must be tossed out because some evidence falls afoul of the immunity ruling.
If Merchan determines that Trump’s conviction should stand and the sentencing should go forward two weeks later, the former president could still appeal the decision and try to get a higher court to delay sentencing until the appeal plays out.
Merchan could sentence the real estate mogul to nothing at all, to several years in prison, or to something in between. Trump would likely appeal any prison sentence by arguing it amounts to unconstitutional interference with the presidency.
Trump could have Justice Department abandon federal cases
Trump has said he would fire the federal prosecutor, Smith, and possibly even imprison him.
“I wouldn’t keep him,” Trump told Breitbart News in July 2023. “Jack Smith? Why would I keep him? He is deranged.”
The next day Trump said in a post on Truth Social that Smith should be in jail.
“They ought to throw Deranged Jack Smith and his Thug Prosecutors in jail, with Meritless Garland and Trump Hating Lisa Monaco,” Trump said in a post on Truth Social in July 2023, referring to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco.“They have totally Weaponized the Department of Injustice.”
Garland has repeatedly denied the Trump prosecutions were politically motivated. “Justice Department prosecutors are nonpartisan,” he said. “They don’t allow partisan considerations to play any role in their determinations.”
Trump contends he could pardon himself
Article 2 of the Constitution states the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Trump has said he could pardon himself, but that remains a subject for legal debate.
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself,” Trump said in a 2018 post on X, formerly known as Twitter.
A number of law professors say a president could pardon himself, while others disagree.
“President Trump can clearly pardon anyone − even himself − subject to the Mueller investigation,” John Yoo, a law professor at the University of California at Berkeley and a former deputy assistant attorney general in George W. Bush’s administration, wrote in 2017, during special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
But four days before Richard Nixon resigned in 1974, Mary Lawton, acting assistant attorney general, wrote that “under the fundamental rule that no one may be a judge in his own case,” a president couldn’t pardon himself.“
What about Trump’s federal election charges?
U.S. District Judge Tanya Chutkan is weighing whether to dismiss some or all of the charges against Trump accusing him of conspiring to steal the 2020 election and obstructing Congress from counting Electoral College votes.
Chutkan will decide based on the Supreme Court ruling in July that Trump is presumptively immune from charges for official acts but vulnerable to charges for private acts. Her decision could be appealed to the Supreme Court again.
Trump is charged with conspiracy to overturn the 2020 election and obstruction of Congress for urging state lawmakers to overturn election results and to select “fake” Republican presidential electors, making false claims of widespread election fraud and sending a mob of supporters to the Capitol on Jan. 6, 2021, where they rioted.
Smith has argued that Trump was acting for his private gain rather than the public duty of serving in office. But Trump, who has pleaded not guilty, contends the entire case should be thrown out based on presidential immunity.
Classified docs case already dismissed, but appeal could be abandoned
The dismissal of another federal case, which charges Trump with hoarding classified documents at his Mar-a-Lago estate after leaving the White House, is on appeal.
U.S. District Judge Aileen Cannon dismissed the charges by ruling Smith’s appointment was illegitimate.
The charges accused Trump with unlawful retention of more than 100 national security documents, which held some of the country’s most closely guarded secrets, for a year and a half after leaving the White House.
Smith has asked the 11th U.S. Circuit Court of Appeals in Atlanta to overturn Cannon’s decision.
Trump, who pleaded not guilty, has argued repeatedly that he could take records with him after leaving the White House, despite the Presidential Records Act giving ownership to the National Archives and Records Administration. Trump also argues he had declassified the records, despite the lack of documentation for his assertion.
Georgia charges stand even if federal cases are dismissed
Georgia election racketeering charges against Trump could linger even if the federal charges are dropped.
Trump is accused of conspiracy for urging state lawmakers to replace the state’s presidential electors with Republicans despite Democratic President Joe Biden’s 2020 Georgia victory. Trump is also charged with soliciting a public official to violate his oath of office for asking state Secretary of State Brad Raffensperger to “find” him enough votes to win.
Trump has argued the alternate electors were recruited in case he won legal challenges and that his call urging Raffensperger to investigate election fraud was “perfect.” He’s pleaded not guilty.
The Georgia Court of Appeals is scheduled to hear arguments Dec. 5 about whether to remove Fulton County District Attorney Fani Willis from the prosecution because of her romantic relationship with another prosecutor.
Trump’s lawyer, Stege Sadow, cited a provision in the Constitution called the supremacy clause that makes federal law superior to state law, and argued the Georgia trial must be put on hold until after he completes his term as president.
“I believe that under the supremacy clause and his duties as president of the United States, this trial could not take place at all until after he left his term of office,” Sadow told Fulton County Superior Judge Scott McAfee in December.
This article originally appeared on Palm Beach Post: How Trump’s win could delay (or erase) his legal troubles
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