With his election victory, Donald Trump will have the power to get rid of half his criminal caseload when he returns to the White House — specifically, the two federal cases brought by special counsel Jack Smith for alleged 2020 election subversion and alleged illegal hoarding of classified documents and obstruction. The president-elect pleaded not guilty in all four of his criminal cases, but his guilt won’t likely be adjudicated either way in those two.
NBC News reported on Wednesday that Justice Department officials “have been evaluating how to wind down the two federal criminal cases” before Trump takes office, “to comply with longstanding department policy that a sitting president can’t be prosecuted.”
Presidents can’t pardon or dismiss state cases, though we don’t expect Trump to face New York or Georgia state proceedings while in office. When the judge presiding over the Georgia case asked Trump’s lawyer last year about trying the case if Trump becomes president again, the lawyer said he thought that, under the Constitution’s supremacy clause and Trump’s duties as president, a trial couldn’t take place until after he left office.
In his New York hush money case, Trump is set for sentencing on Nov. 26 — that is, if Judge Juan Merchan on Nov. 12 rejects Trump’s motion to overturn his guilty verdicts based on the Supreme Court’s immunity ruling. Even then, Trump signaled he’d immediately appeal an adverse immunity ruling, so don’t assume that sentencing — for falsifying business records, stemming from the 2016 election-related Stormy Daniels hush money coverup — proceeds as scheduled. At any rate, incarceration isn’t mandatory in that case and a sitting president won’t be incarcerated.
In Georgia, that multi-defendant case is already tied up on a pretrial appeal in the defense attempt to disqualify Fulton County District Attorney Fani Willis. Whatever happens next in that case, where Trump is also charged with 2020 election interference, don’t expect him to appear in a state criminal courtroom as president, even if he’d only be able to delay — rather than dismiss — the case. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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