When Donald Trump clinched the Republican Party’s nomination for the presidency in March, he was facing felony charges in four separate cases. Since then, the ex-president was convicted in one case, of falsifying business records, a verdict now in limbo because of a Supreme Court ruling on presidential immunity. The court’s ruling raised questions over the viability of two more of the prosecutions against Trump — one brought by the Justice Department and another by the state of Georgia, both for conspiring to overturn his 2020 election loss. The fourth case, involving allegations of mishandling classified documents, was dismissed July 15 by a federal judge, though the Justice Department has appealed the decision.
The legal twists reduce the chance that any of the cases will be wrapped up before the next US president is inaugurated in January. If it’s Trump, it’s widely expected that he would seek to have any remaining cases against him dropped or put on hold.
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The Supreme Court ruled July 1 that Trump is immune from criminal charges for some official actions taken while he was president. Actions clearly within his constitutional authority are absolutely immune, the justices said, while those on the periphery can be prosecuted only if there’s no danger of intruding on executive branch authority. Unofficial acts enjoy no protection.
The federal elections case. The Supreme Court justices sent the case before them, a prosecution by Special Counsel Jack Smith concerning Trump’s efforts to overturn the 2020 presidential election, back to the trial judge. They also said Smith couldn’t use evidence of Trump’s official acts at trial, even if jurors are told they can convict only based on his private conduct. Smith had wanted to use Trump’s official actions to show he knew his claims of fraud in the 2020 election were false. On Aug. 27, Smith filed an updated indictment. It features the same four charges but cuts certain claims related to Trump’s communications with government officials — including the section alleging that he tried to involve the Justice Department in his efforts to reverse his election loss to Joe Biden.
The Georgia elections case. Trump has also sought immunity in this case involving his efforts to overturn the election. Judge Scott McAfee had been awaiting the Supreme Court’s decision on the matter. But for now, the case is on hold until an appeals court resolves whether Fulton County District Attorney Fani Willis should be removed because of her romance with one of the prosecutors, who has since stepped aside. The appeals court set arguments for Dec. 5.
The falsifying business records case. Trump was convicted on May 30 on 34 felony counts for falsifying business records to conceal a hush-money payment to an adult-film star made on the eve of the 2016 presidential election. After the Supreme Court’s immunity ruling, his sentencing was delayed until Sept. 18 so the judge could consider whether the verdict should stand. Though much of the case centered around actions by Trump before he took office in 2017, his lawyers say that testimony and evidence at the trial also concerned what could be deemed “official acts” under the Supreme Court ruling.
US District Judge Aileen Cannon ruled that Congress hadn’t provided the US attorney general the clear authority to appoint or provide funding to Special Counsel Smith, the prosecutor in this case as well. She wrote that the Constitution gives Congress the role of appointing and funding “constitutional officers.” In their appeal, US prosecutors said Cannon’s view “conflicts with an otherwise unbroken course of decisions, including by the Supreme Court.”
Yes. A clean criminal record isn’t a prerequisite for the office.
Should Trump be sworn in as president before a verdict in a federal case, he could order his Justice Department to file court motions to dismiss the prosecution.
Such motions, presumably, would lean on previous positions taken by the Justice Department’s Office of Legal Counsel. In opinions released in 1973, when President Richard Nixon was under criminal investigation for the Watergate scandal, and in 2000, after a probe of the Arkansas business dealings of President Bill Clinton and his wife Hillary, the office said that indicting or prosecuting a sitting president would unconstitutionally undermine the ability of the executive branch to function.
If judges were to deny the motions, the attorney general could appeal or simply refuse to participate in the litigation going forward, said Jon Sale, a former federal prosecutor who served as special counsel during the Watergate investigation.
Trump, in a second term, could also fire Smith. Smith was appointed by the current attorney general, Merrick Garland, and, under existing rules, can be dismissed by the holder of that office at the president’s direction only for a cause such as misconduct or dereliction of duty. But Trump could ignore that requirement, said Kimberly Wehle, a University of Baltimore law professor whose research is focused on the separation of powers. The rules for special counsels also could be amended by Trump’s attorney general, she said, given that they were established by a 1999 Justice Department regulation that never went through public notice and comment.
In the unlikely event Trump were to be convicted in a federal case before inauguration day, he could appeal the verdict and, as president, order his attorney general not to respond to the appeal. In such a situation, the case would be dismissed, according to Jed Shugerman, a Boston University School of Law professor, whose research is focused on executive and prosecutorial power.
The US president has no direct control over state prosecutors like those in Georgia who’ve charged Trump with trying to undo his 2020 election defeat in the state. While a reelected Trump couldn’t order his attorney general to drop a state prosecution, he could have the Justice Department ask the judge to put the proceedings on hold while he’s in office. If the judge refused, the Justice Department could file appeals all the way to the Supreme Court.
Not for convictions on state charges. The president’s constitutional power to “grant reprieves and pardons for offenses against the United States” applies only to federal crimes. New York’s governor, Democrat Kathy Hochul, has the power to grant pardons, but she’s no Trump fan. In Georgia, pardons are governed by a state board and applicants can request one only five years after completing their prison sentence.
Legal scholars disagree on whether the president can self-pardon in the case of federal prosecutions; no president has tried it. Some point to the advice given by the Office of Legal Counsel to President Nixon in 1974 in connection with the Watergate scandal: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”
Should Trump be sentenced to prison in a state case, the Justice Department would likely file a legal motion arguing that it’s inappropriate and unconstitutional to incarcerate a sitting president, according to Sale. The argument would lean on the Constitution’s so-called Supremacy Clause, which bars states from interfering with the federal government’s exercise of its constitutional powers. If a judge refused to postpone the prison sentence, the Justice Department could seek to have the case moved to federal court and dismissed, he said. “You can’t have a commander in chief, the most powerful person in the world, sitting in a state prison,” Sale argues.