(Bloomberg) -- For much of his campaign to return to the White House, President-elect Donald Trump was facing four separate criminal prosecutions. Now that he’s won, prosecutors are moving to drop his two federal cases, and the two cases brought by states are in peril as well.
The New York hush-money case
Trump in May become the first former US president to be convicted of a crime after he was found guilty on 34 felony counts of falsifying business records, in a case brought by Manhattan District Attorney Alvin Bragg on behalf of New York state. A jury held that Trump had engaged in fraud to conceal a $130,000 payment made to adult film actress Stormy Daniels before the 2016 election to keep her quiet about an alleged sexual encounter a decade earlier.
Justice Juan Merchan in Manhattan is scheduled to sentence Trump on Nov. 26, though it’s unclear if the hearing will go forward. Trump faces as long as four years behind bars, though many legal experts have predicted he would get far less time, or even just probation, because he is a first-time offender.
Trump’s reelection raises additional questions about whether prison time is on the table. In an email to the court, Trump lawyer Emil Bove argued for dismissal of the case altogether to avoid “constitutional impediments to President Trump’s ability to govern.” Such arguments could lean on the Constitution’s so-called Supremacy Clause, which bars states from interfering with the federal government’s exercise of its constitutional powers.
“You can’t have a commander in chief, the most powerful person in the world, sitting in a state prison,” said Jon Sale, a former federal prosecutor who served as special counsel during the Watergate investigation.
Even before Trump’s reelection, Merchan was considering a request by Trump to toss out the verdict as a result of the US Supreme Court’s landmark ruling in July that former presidents are immune from criminal charges for some official actions taken while in office. Trump argues that his trial was tainted by testimony and other evidence that wouldn’t have been allowed under the new standard, even though the case related to his conduct before he was president. On Nov. 12, Merchan granted an extention until Nov. 19 for Trump and prosecutors to prepare arguments on the dismissal request.
Even if the conviction sticks, Trump can serve as president given that a clean criminal record isn’t a prerequisite for the office.
The federal election conspiracy case
The US Justice Department in August 2023 charged Trump with conspiring to reverse his 2020 election loss and inciting a riot at the US Capitol, putting Trump at risk of spending decades behind bars. But the case, brought by Special Counsel Jack Smith, suffered from frequent delays in court and was dealt a major blow by the Supreme Court’s immunity decision.
The justices ruled 6-3 along ideological lines that former presidents are immune from charges over actions that were clearly within a president’s constitutional authority; they said private conduct could be prosecuted. After the ruling, Smith pressed ahead with a new indictment that removed some details but included the same four claims, setting up another fight over how much of Trump’s conduct was official versus private.
Now it may be moot. After Trump won reelection, Smith began preparing to drop the prosecution, according to a Justice Department official. On Nov. 8, he asked the judge overseeing the case to cancel all upcoming deadlines while the government evaluates what to do next. A department policy put in place in 2000 states that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
In any case, Trump, once in power, could order his Justice Department to file court motions to dismiss the prosecution. Or he could simply fire Smith, which he said he would do “within two seconds” of taking office.
The classified documents case
Smith also charged Trump, in June 2023, with dozens of counts of willfully retaining national security documents after leaving office and obstructing US efforts to get them back. A Trump-appointed judge dismissed the case earlier this year, ruling that Congress hadn’t provided the US attorney general the clear authority to appoint or provide funding to Smith. The Justice Department appealed the dismissal, saying it strayed from past rulings in multiple courts backing the work of special counsels.
It’s unlikely the appeals court will get a chance to act. As with the election fraud case, Smith is now evaluating how to wind down this case as well, according to the Justice Department official.
The Georgia election case
District Attorney Fani Willis of Georgia’s Fulton County filed her own case against Trump in August 2023, charging him with conspiring with more than a dozen supporters to undo his 2020 election defeat in the state.
The US president has no direct control over state prosecutors, but Trump’s lawyers are preparing to seek dismissal of Georgia’s case against him, arguing that it shouldn’t move ahead because he is returning to the White House. The strategy hinges on convincing a court that Justice Department guidelines against federal prosecutions of a sitting president also apply to a president-elect facing state charges.
Trump’s legal team will try to do so before Dec. 5, when the state appeals court will hear arguments about whether Willis should be removed from the case over a romance with one of the prosecutors, who stepped aside.
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