UPDATE (Nov. 6, 2024, 6:00 a.m. ET): This piece has been updated to reflect NBC News’ projection that Donald Trump has defeated Kamala Harris to reclaim the White House.
What’s the best advice Donald Trump’s criminal defense lawyers could give him at this point?
Win the election.
The Electoral College results could determine whether the Republican presidential nominee spends the next several years in the White House or in courtrooms fighting to fend off prison terms. Indeed, if Trump wins, his criminal caseload would almost certainly be cut in half.
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Here’s where his four prosecutions stand, starting with the federal cases that are effectively on the ballot.
Classified documents and obstruction case
In July, U.S. District Judge Aileen Cannon dismissed the case in which the former president was accused of unlawfully retaining national defense information after he left office and obstructing the investigation into his actions. The Trump-appointed judge reasoned that special counsel Jack Smith was unlawfully appointed, and Smith is appealing the case’s dismissal. Whoever loses at the 11th U.S. Circuit Court of Appeals could appeal to the Supreme Court.
But the case could be gone by February if Trump, who pleaded not guilty in all of his criminal cases, takes office in January. The GOP presidential hopeful said he’d fire Smith in “two seconds” if he wins. The former president, who issued clemency to assorted cronies when he was in office, could also attempt a legally untested self-pardon. And the Justice Department has a policy against charging and prosecuting sitting presidents that could also come into play.
Even if Trump loses the election and Cannon’s dismissal is reversed on appeal, the case’s fate is shaky so long as she presides over it. While there’s a good chance that the appeals court reverses the dismissal and the Supreme Court allows that reversal to stand, it’s less likely (but still possible) that the appeals court assigns a new judge to handle it. That’s despite the Florida judge’s Trump-friendly actions to date and the possibility that a President Trump could seek to promote her to higher office.
Federal election interference case
Trump’s other federal case is being handled by a judge who’s arguably Cannon’s opposite: Obama appointee Tanya Chutkan. The main wrinkle in that one — if Trump loses and can’t dismiss it — is the Supreme Court ruling from July that granted the former president broad criminal immunity. That not only narrowed the case accusing Trump of illegally trying to subvert the 2020 election he lost to Joe Biden, but also leaves unclear how much of Smith’s case can make it to trial.
That’s because the high court’s Republican-appointed majority laid out a vague test that eliminated some aspects of Smith’s case, but left it to Chutkan to decide how much of the rest of the case survives. Whatever the District of Columbia judge decides could ultimately be appealed back to the justices before any trial goes forward. So while Cannon is the murky factor in the documents case, the Roberts Court hovers over this one.
On that note, another case handed down by the justices last term, narrowing obstruction charges for Jan 6. defendants, could also help Trump, who’s charged with obstruction in two of the four counts in his D.C. indictment.
Georgia election interference case
The Supreme Court’s immunity ruling could likewise narrow Trump’s state election interference case — but we’re not even there yet. That one’s been tied up on a pretrial appeal, in the defense effort to disqualify Fulton County District Attorney Fani Willis. If Willis and her office are kicked off the case, then when and even whether it gets assigned to a new office or prosecutor is an open question.
And even if Willis wins the pretrial appeal and Trump wins the election, don’t expect a sitting president to stand trial in state court, either. That issue hasn’t been litigated, but Trump’s Georgia lawyer, Steve Sadow, has signaled that he’s prepared to argue the matter on constitutional grounds.
Even if Trump loses and Willis stays on the case, don’t expect a Georgia trial to go forward against Trump any time soon. On top of immunity and other issues that still need resolution, there are several co-defendants remaining on the racketeering indictment, which raises its own complications. Adding yet another wrinkle is that one of those co-defendants, former Trump White House chief of staff Mark Meadows, has a pending petition at the Supreme Court, in which he’s attempting to move his charges to federal court. That issue extends beyond Meadows, because other co-defendants are seeking the same relief, including Trump-era environmental lawyer Jeffrey Clark. (Meadows and Clark have pleaded not guilty.) Meadows’ petition is due for consideration during the justices’ private conference on Friday, so we could soon learn whether the court is taking that one up. It takes four justices to grant review. Finally, there’s Manhattan. In May, Trump was convicted of falsifying business records for covering up the reimbursement of hush money paid to Stormy Daniels ahead of the 2016 presidential election. The adult film star claimed she had sex with Trump years earlier, which he denied. Sentencing in that state case has been delayed, most recently to Nov. 26. But first, Judge Juan Merchan is set to rule Nov. 12 on whether the guilty verdicts can stand in light of the Supreme Court’s immunity decision. Even though Trump wasn’t convicted in New York for official acts taken as president, his lawyers argue that evidence used by prosecutors to convict him nonetheless runs afoul of that ruling. Trump’s lawyers have also signaled that they would immediately appeal an adverse immunity decision, potentially all the way to the Supreme Court. So regardless of whether Trump wins the election, his sentencing in New York could be further delayed due to that possible appeal. In any event, incarceration isn’t mandatory in this case, which involves the lowest-level charges by law among Trump’s four prosecutions. But the fact remains that his best defense across all his cases is an election victory. 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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