Yoopya with The Conversation
US President-elect Donald Trump achieved a resounding victory on several fronts. He will comfortably govern with a likely majority in the Senate and the House of Representatives, with little to no opposition from Republican members of Congress.
Having reshaped the US federal judiciary, and especially the Supreme Court, to his liking in his first term, he now has the chance to cement this judicial legacy for decades.
But he is also the first sitting or former president to be criminally convicted. As with many things Trump, this is uncharted territory.
Until election day, the then-former president faced the possibility of spending decades behind bars. The two federal indictments against Trump will disappear either before or shortly after his inauguration. While Trump cannot wave a magic wand over the two cases before state courts, his chances of having to govern from prison are slim.
The federal cases
The two federal cases are the easiest for Trump to get out of. Attorney-General Merrick Garland appointed Jack Smith as special counsel for the two cases against Trump over his efforts to undermine the 2020 elections and his handling of classified documents after stepping down from the presidency in 2021.
In June and July 2023, Trump was charged with dozens of felonies over retaining classified records after he had left the White House. In an often protracted and baffling pretrial process, the judge first postponed and then dismissed the case entirely on July 15 2024. Trump appointee Judge Aileen Cannon found Smith’s appointment was unconstitutional. The decision is under appeal.
On August 1 2023, Smith charged Trump with four crimes pertaining to federal election interference in connection with events prior to and on January 6 2021. Trump’s lawyers argued he was immune from prosecution because he acted in his official capacity as president. The Supreme Court stepped in and raised the bar for prosecuting presidents.
Along ideological lines, the court decided that presidents have “absolute immunity” for their “core constitutional powers” and “presumptive immunity” for all other official acts. The case was handed back to the trial court to determine if the charges should be partly or wholly dismissed.
Shortly before the 2024 election, Trump reiterated that he “would fire [Smith] within two seconds. He’ll be one of the first things addressed”. There are no constitutional or legal barriers to a president directing the attorney-general to dismiss federal cases against a president.
It may not have to come to that. A 1973 memorandum from the Office of Legal Counsel (OLC), situated within the US Justice Department, argued against the prosecution of a sitting president. Confirming its Watergate-era findings, another OLC memorandum from 2000 stated plainly:
[T]he indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.
Smith has already indicated he will likely wind the cases down.
The same rationale was used by former special counsel Robert S. Mueller in the 2019 investigation into Trump and his associates over the interference of Russia in the 2016 elections. In deciding not to pursue criminal charges against Trump, who was then president, the Mueller report relied on that memo.
The Georgia and New York cases
Trump has no formal power over state prosecutions once he assumes the presidency.
The Georgia case involves numerous charges, including an indictment over racketeering in connection with the 2020 elections. The case hit a snag when state prosecutor Fani Willis was accused of having a financial conflict of interest due to hiring Nathan Wade, with whom she had a relationship, as a special prosecutor in the case.
Trump and some of the other defendants tried to get Willis disqualified, a motion that was denied by Georgia courts. The decision is under appeal, with oral arguments scheduled for December 5 2024. The trial court proceedings are on hold, pending the outcome of the appeal.
Should Trump be convicted, he could appeal to a likely amenable Georgia State Board of Pardons and Paroles, which is appointed by the Republican state governor.
Trump was found guilty in a case concerning the falsification of business records in the so-called “hush money case” involving a former adult film star. After a six-week trial in which Trump was held in contempt of court twice, it took a unanimous Manhattan jury less than two days to hand down a guilty verdict on all 34 felony charges brought against him by the Manhattan district attorney. Trump’s lawyers were successful in delaying his sentencing hearing, which is now set for November 26 2024. His punishment could range from a fine to prison time.
Had Trump lost the 2024 election, he would have been sentenced in New York on November 26, and possibly in Georgia at a later stage, if convicted.
Now that he has prevailed, his lawyers are arguing the cases should be thrown out (a hearing has been set for November 12). If that doesn’t work, they may lean on the untested argument that the supremacy clause of the US Constitution prevents state courts from sentencing a president-elect. If judge Juan Merchan decides against Trump, he would have the chance to appeal, including all the way to the US Supreme Court.
The most likely scenario is that Merchan will apply the spirit of the OLC legal memorandum. While it technically applies only to sitting presidents and only binds federal agencies, the requirements of a president-elect make it plausible that Trump’s hearing or his punishment would be postponed at least until he steps down or his term ends in 2029.
The January 6 defendants
Trump’s victory hasn’t only given him temporary respite from criminal punishment. Given his past statements about what happened on January 6 2021, he may also agree to pardon those who have either been convicted or who still face prosecution for the storming of the Capitol. The first applications to delay sentencing until after the Trump inauguration have already been made.
This would be yet another first in US history.
Author:
Markus Wagner | Professor of Law and Director of the UOW Transnational Law and Policy Centre, University of Wollongong