(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 have dropped 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 became 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.
Trump’s crimes carry a penalty of as much as four years behind bars, though many legal experts had predicted that as a first-time offender he would get far less time, or even just probation.
But Trump was reelected before his scheduled sentencing date, and that has raised additional questions about whether prison time is on the table. Trump’s lawyers Todd Blanche and Emil Bove asked that the case be dismissed, arguing that it would pose “constitutional impediments” and interfere with his abilities to govern.
The Constitution’s so-called Supremacy Clause 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, the judge in the case, Justice Juan 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.
Prosecutors in Bragg’s office said they would oppose any effort to dismiss the case but indicated they were open to delaying any proceedings until Trump finishes his second term.
On Nov. 22, Merchan said he would weigh motions from the two sides before proceeding. 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 is moot. With Trump headed back to the White House, the Justice Department ended its pursuit of criminal charges against him on Nov. 25. 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.”
The classified documents case
Smith had separately 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 had appealed the dismissal, saying it strayed from past rulings in multiple courts backing the work of special counsels. But Smith wound down this case as well on Nov. 25.
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. Trump’s legal team has argued that Willis should be removed from the case over a romance with one of the prosecutors, who stepped aside.
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.
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