Topline
Special Counsel Jack Smith is expected to suggest how his two federal criminal cases against former President Donald Trump should move forward in new filings this week—but as November approaches, what Trump’s legal cases will look like will be heavily dependent on the outcome of the presidential election.
Key Facts
If Trump loses: Trump’s legal cases would keep moving forward as they have been, proceeding to trial without the ex-president’s office posing any impediment.
Trump’s federal case for trying to overturn the 2020 election would move forward to trial at some point after Election Day, and an appeals court will consider whether to revive Trump’s second federal case for allegedly mishandling White House documents after a Trump-appointed district court judge dismissed the charges.
The ex-president’s sentencing in his Manhattan criminal case will move forward in state court and any sentence could be carried out, and Trump’s case in Georgia state court for trying to overturn the 2020 election will keep inching toward a trial (it can’t go to trial until next year at the earliest as an appeals court first has to rule on whether prosecutor Fani Willis should be disqualified, which they won’t hear until December).
If Trump wins: Trump’s reelection would be a likely death knell for his criminal cases in federal court, and while his win wouldn’t directly stop his cases in state court, it would likely delay their impacts until after he leaves office.
Trump is expected to appoint officials to the Department of Justice who would have the charges against him in the federal election case dropped and stop the appeal of the federal documents case, given reports indicating he plans to appoint loyalists to the agency.
A Trump win couldn’t erase his conviction in New York state court for falsifying business records, but it does make it likely any sentence wouldn’t be carried out until after he leaves office due to the logistical challenges of imposing punishments like prison time or travel restrictions on a sitting president.
Trump’s attorneys have already said they would try to stop the Georgia case from going to trial until after Trump leaves office if he’s reelected—given the challenges of him having to appear in court every day—though it remains to be seen if they’d succeed.
What To Watch For
Prosecutors will press judges to keep both of Trump’s federal criminal cases moving this week, even as the election outcome remains a wild card. Smith is expected to file the government’s appeal in the federal documents case on Tuesday, which will oppose U.S. District Judge Aileen Cannon’s dismissal saying the charges should be thrown out because Smith was unlawfully appointed.
The filing could also indicate whether the government will ask the appeals court to take Cannon off the case if the charges do get revived, former U.S. attorney Joyce Vance noted, as the Trump-appointed judge has drawn criticism for issuing rulings favorable to the ex-president. Smith and Trump’s lawyers will then say on Friday how they want the federal election case to proceed, as the case has only just started moving forward again in district court after the Supreme Court narrowed the scope of what Trump can be charged with. A ruling is also expected shortly in Trump’s Manhattan case on whether to delay the ex-president’s sentencing, as Trump has argued the sentencing—now set for September 18—should be postponed until after the election.
What Happens If Trump’s Sentenced To Prison?
It still remains to be seen whether Trump will be sentenced to prison in his case in Manhattan, where he was convicted on 34 felony charges, though legal experts believe it’s unlikely—though not impossible—Trump would get prison time as a first-time offender. If he does get sentenced to prison before winning the election or being inaugurated, there’s technically nothing stopping him from serving as president, even if he were still imprisoned on Inauguration Day. Given the logistical challenges that would present, however, it’s more likely that Trump’s prison sentence would be pushed back until after he leaves office. Trump could also sue to be released from prison by claiming it was interfering with his presidential duties, The New York Times notes.
Could Trump Fire Jack Smith?
Trump has said he wants to fire Smith as special counsel if he’s reelected, which would likely be necessary for a Trump-controlled DOJ to have the charges against him dropped. A future President Trump wouldn’t have direct authority to fire Smith, as special counsels can only be fired by the attorney general.
It’s expected any Trump-appointed attorney general would be willing to fire Smith, however, even as federal rules dictate special counsels, who are supposed to be independent, can only be let go “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.” Smith could challenge his firing in court, though it’s not clear whether that would be successful, especially at the right-leaning Supreme Court. Cannon’s ruling—disputed by legal experts—claiming the special counsel was unlawfully appointed could give more fuel to the Trump DOJ’s case that Smith should be let go.
Could Trump Pardon Himself?
Trump cannot erase his conviction in Manhattan if he wins in November, as that case was in state court and presidents cannot pardon state charges. It’s highly unlikely Trump could be convicted in either of his federal cases by the time he takes office, though if he hypothetically were, it’s still an open legal question whether presidents can pardon themselves. The DOJ previously issued a legal memo in 1974, right before Richard Nixon resigned, saying presidents cannot pardon themselves, though that’s not legally binding. It’s likely that if Trump tried to pardon himself, the dispute would ultimately be decided by the Supreme Court.
What Impact Does The Supreme Court’s Immunity Ruling Have?
The Supreme Court ruled in July that Trump and other ex-presidents can’t be criminally charged based on their “official acts” in office, but can be prosecuted for acts outside the scope of their official duties. It still remains to be seen what impact that will have on Trump’s cases. Trump is trying to get out of his Manhattan sentencing by claiming the verdict against him should be thrown out, alleging some of the evidence used at trial is covered by the court’s immunity ruling.
Judge Juan Merchan is scheduled to rule on that request on September 16. In the federal election case, U.S. District Judge Tanya Chutkan will also have to determine how the immunity ruling affects the scope of the charges before it can go to trial. While Trump’s federal documents case has been dismissed, the ex-president is likely to make immunity claims if the charges get revived—as he’s previously claimed he should be immune because he “declassified” documents while in office—and Trump will also likely claim immunity in the Georgia case once that starts moving forward again.
Key Background
Trump is the first current or former president to face criminal charges, with all of his indictments coming last year after he had already left office. The Manhattan case is the only one that has gone to trial so far, as Trump has managed to otherwise delay his criminal cases from going to trial before the election. His federal election case was on pause for months while the Supreme Court debated the immunity issue, and Cannon slow-walked a number of rulings in the documents case and indefinitely postponed a May trial date before she dismissed the charges entirely.
Prosecutors had also initially aimed for Trump’s Georgia case to go to trial in August before the dispute over Willis’ disqualification—which concerns her romantic relationship with prosecutor Nathan Wade—derailed the case. Trump has pleaded not guilty to every charge against him, and has broadly decried his criminal cases as “witch hunts” meant to hurt him in the election.
