What About the Accusations Against Trump?

There’s no soft way to say this, so let’s be clear: All four criminal cases against Donald Trump are effectively over.

Prosecutors can still take steps to put their findings into the history books and serve as a warning to the American public. But Trump will not face another criminal trial and will not go to jail. He gambled with liberty interests to recapture the presidency — a surprising all-or-nothing bet — and won.

Let’s start with two federal cases. Trump already announced that he would fire private attorney Jack Smith “in two seconds” and that Smith reportedly He discussed plans to terminate the cases within the Justice Department. There is an academic debate about whether the president has the constitutional authority to fire a special prosecutor. Federal regulations Provide that the attorney general can terminate a private attorney, but not the opponent “unitary executive“His theory is that the president is not only the head of the executive branch, but also like that It is the executive branch and can essentially do whatever it wants within it. Either way, Trump has an easy solution: He will appoint an attorney general to do his dirty work and, if necessary, remove the special counsel and the cases himself.

Smith faces another structural hurdle beyond Trump’s promise to fire him. long standing Department of Justice policy It prohibits the impeachment and prosecution of a sitting president. We have never before encountered a scenario where the subject of an investigation (or in this case, an actual indictment) emerges. become the incumbent president at the time of the case. But here we are. And Smith seems aware that whether he is fired or not, his case must end with Trump being sworn in on January 20.

Smith still has two and a half months in office, but he won’t have a meaningful opportunity to do anything significant in the courtroom between now and Inauguration Day. Both of his cases remain in appellate limbo; The Jan. 6 case is still mired in litigation over the size of the case. Trump’s immunityand confidential documents case was heard dismissed entirely because the district judge ruled that the entire private attorney regime was unconstitutional. Trump will return to office long before both problems are fully resolved.

But Smith still has one opportunity left to plead his case, at least on paper. Under the above-mentioned regulations, special counsel must write a final report describing the findings of the investigation and the decision to prosecute or dismiss. Normally, a private attorney does not write the report until the end of his or her case, preferably after the hearing. But Smith could reasonably decide it was appropriate to write the report now, based on Trump’s public declaration to end both cases and Justice Department policy against suing a sitting president. It is not clear whether we will learn much that is revealing or new; Smith had already filed detailed indictments in both cases and provided a comprehensive 165-page summary of his evidence in the 2020 election case. But if he wants to produce documents that fully formally set out his findings, he will have the opportunity to do so before the end of his term.

If this sounds like light gruel for someone hoping to see the allegations fully examined through trial, it is. Some blame Trump for his delaying strategy. But that’s like an NBA coach accusing his opponent of trying to block all of his team’s shots; This is how the game is played. With Trump’s personal freedom at stake, his lawyers advanced constitutional defenses that any semi-competent defense attorney could have put forward, and they won. This is not foul play and it is not their “fault” that these cases will never go to trial. They did their job.

If you want to blame, consider this: “Every day that passes makes it less likely that a potential federal investigation of Trump will happen, and if it does happen, it becomes even more worrisome for the Department of Justice… The debate is sure to intensify over whether AG Merrick Garland is the one who has the right to do so.” pointedly and pragmatically set his sights on Trump. One day we will find out. “No matter what, the delay in reaching a solution is counterproductive and inexcusable.” It’s something I wrote In May 2022 — six months before Garland appointed Smith and a year and three months before the Justice Department finally began filing lawsuits. It shouldn’t be a surprise that the deadline expires.

Then we have 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 one of the best of all time: the criminal sentencing of the president-elect in Manhattan on Nov. 26. Trump’s team reportedly He will ask the judge to cancel the sentence, and the judges have offered him various legal solutions to prevent this from ever happening. If it goes ahead, it will be a 50-50 decision on whether the judge will sentence Trump to prison. But even if he does, it will be purely ceremonial. There is no way the president-elect could be jailed during his transition or presidency, and a typical defendant in Trump’s position would likely be granted bail pending appeal (meaning the right to appeal before serving any sentence).

Finally, there is the Fulton County district attorney’s 2020 election interference case. This is already on the verge of collapsing under its own weight. There is a trial judge thrown out Five of the 13 original charges against Trump. And a Georgia appeals court is currently considering Prosecutor Fani Willis’ alleged conflict of interest (stemming from her relationship with former attorney general Nathan Wade) and prosecutorial misconduct (due to her incendiary out-of-court statements about the case). trial judge appointed “legally improper”). The signs are concerning for the district attorney.

Again, we face a vexing constitutional question: Can a state investigation be launched against a sitting president? Once again, watch intellectually stimulating legal arguments from brilliant scientific minds. But I will put an end to the doubt: There is no way. If state-level officials in New York try to imprison a sitting president or Georgia courts try to prosecute him, federal courts will block that under the law. Supremacy Clauseor the lesser known Clause You’ve Got to Be Kidding Me. Our executive branch cannot function effectively and effectively enforce the laws of the land while the commander-in-chief is tied up in court or behind bars, on state charges.

In theory, both state trials could be delayed until Trump’s term ends in January 2029 and restarted after that date. But Trump might have an argument that such a delay would impair his right to a speedy trial (even if the delay was due to Trump’s own status as president). And again we need to take practices into account. Will we really see state-level prosecutors (no matter who they are four years from now) trying to imprison an 82-year-old, two-term former president for behavior that occurred 13 years ago (as in the hush-money case)?

We’ll have plenty of time to think about the meaning of it all, and it’s hard to see how Trump will actually be fully rewarded for his actions. But a careful look at the practical implications of prosecuting former and future presidents shows that this conclusion has held all along. It seems that in our courts, stark political reality prevails over high-minded desires.

This article will also be published free of charge. CAFE Summary bulletin. Find more legal and policy analysis from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at: cafe.com.

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