Photo: Evan Vucci/AP
There’s no gentle way to put this, so let’s be direct: All four criminal cases against Donald Trump are effectively over.
Prosecutors can still take measures to memorialize their findings for the history books and as a warning to the American public. But Trump won’t face another criminal trial, and he won’t go to prison. He gambled his liberty interests on retaking the presidency — an astonishing all-or-nothing bet — and he won.
Let’s start with the two federal cases. Trump has already announced that he will fire special counsel Jack Smith “within two seconds,” and Smith reportedly has discussed within the DOJ his plans to wind down the cases. There’s an academic debate to be had about whether the president has constitutional authority to fire the special counsel. Federal regulations provide that the attorney general can terminate a special counsel, but the competing “unitary executive” theory holds that the president is not just the head of the executive branch — he is the executive branch and can do essentially whatever he wants within it. Either way, Trump has an easy work-around: He’ll appoint an attorney general who will do his dirty work and dismiss the special counsel and the cases himself if necessary.
Smith faces another structural obstacle beyond Trump’s promise to fire him. Longstanding Justice Department policy prohibits indictment and prosecution of the sitting president. We have never before encountered a scenario in which the subject of an investigation — or in this case, an actual indictment — has become the sitting president during the case. But here we are. And Smith seemingly recognizes that, whether he’s fired or not, his case must end when Trump takes the oath of office on January 20.
Smith still has two and a half months left on the job, but he won’t have a meaningful opportunity to do much of substance in the courtroom between now and Inauguration Day. Both of his cases are stuck in appellate purgatory; the January 6 case is still mired in litigation about the extent of Trump’s immunity, and the classified-documents case has been dismissed altogether because the district judge ruled that the entire special-counsel regime is unconstitutional. Trump will be back in office well before either issue is fully resolved.
But Smith still has one opportunity left to make his cases, at least on paper. Under the aforementioned regulations, a special counsel must write a final report setting forth his investigative findings and prosecution or declination decisions. Ordinarily, a special counsel wouldn’t write the report until the very end of his case, ideally after trial. But Smith can reasonably decide — based on Trump’s public declaration of intent to end both cases and the DOJ policy against prosecuting the sitting president — that it’s appropriate to write the report now. It’s unclear whether we would learn much that is revelatory or new; Smith already has provided detailed indictments in both cases and an exhaustive 165-page recitation of his evidence in the 2020 election case. But if he wants to create documents that formally set out his findings in full, he’ll have an opportunity to do that before his tenure ends.
If this feels like thin gruel to anyone hoping for a full vetting of the allegations through trial, it is. Some blame Trump for his delay strategy. But that’s like an NBA coach blaming his opponent for trying to block all his team’s shots; that’s how the game is played. With Trump’s personal liberty at stake, his lawyers raised constitutional defenses that any semi-competent defense attorney would raise — and they won. That’s not foul play, and it’s not their “fault” these cases will never see trial. They did their jobs.
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If you’re looking to cast blame, consider this: “Every day that passes makes a potential federal prosecution of Trump less likely to happen and more fraught for the Justice Department if it does … The debate surely will rage on about whether AG Merrick Garland has meaningfully and pragmatically set his sights on Trump. Someday, we’ll find out. No matter what happens, the delay in reaching a resolution is counterproductive and inexcusable.” That’s something I wrote in May 2022 — six months before Garland appointed Smith and a year and three months before the DOJ finally got around to indicting. It should come as no surprise that the clock ran out.
Then we’ve got the two state cases in New York and Georgia. We’ve seen plenty of surreal courthouse scenarios over the past few years, and we’re weeks away from an all-timer: the criminal sentencing of the president-elect in Manhattan on November 26. Trump’s team reportedly will ask the judge to cancel the sentencing, and they have offered him various legal off-ramps so it may not happen at all. If it does proceed, it’s something like a 50-50 toss-up whether the judge will sentence Trump to prison. But even if he does, it’ll be purely ceremonial. There’s no way the president-elect gets locked up during the transition period or his presidency, and a normal defendant in Trump’s position likely would be given bail pending appeal anyway (meaning the right to file an appeal before serving any sentence).
Finally, there’s the Fulton County district attorney’s 2020 election-interference case. This one is already on the brink of collapse under its own weight. The trial judge has thrown out five of the 13 original charges against Trump. And a Georgia appeals court is now considering DA Fani Willis’s alleged conflict of interest (arising from her relationship with former lead prosecutor Nathan Wade) and prosecutorial misconduct (for her inflammatory out-of-court statements about the case, which the trial judge termed “legally improper”). The signs are ominous for the district attorney.
Again, we face a vexing constitutional question: Can a state prosecution proceed against a sitting president? Once again, watch for intellectually stimulating legal arguments by brilliant scholarly minds. But I’ll end the suspense: There’s no way. If state-level authorities in New York try to imprison the sitting president, or if Georgia courts attempt to put him on trial, the federal courts will block it under the Supremacy Clause, or the lesser-known You-Must-Be-Kidding-Me Clause. Our executive branch simply cannot function and cannot enforce the law of the land effectively with the commander-in-chief tied up in court or behind bars — on state charges, no less.
Theoretically, both state cases could be put on hold until Trump’s term ends in January 2029 and resumed then. But Trump would have an argument that such a delay would impair his right to a speedy trial (even if the delay is due to Trump’s own status as president). And again, we need to consider the practicalities. Will we really see state-level DAs (whoever they may be four years from now) attempt to imprison an 82-year-old, two-term former president for conduct that happened 13 years prior (as in the hush-money case)?
We’ll have plenty of time to reflect on the meaning of it all, and indeed, it’s hard to comprehend that Trump will skate entirely for all he has done. But a hard look at the practicalities around prosecution of the former-and-future president dictates that this outcome was in play all along. As it turns out, in our courts, hard political reality has a way of prevailing over high-minded aspiration.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
This post was originally published on here
