Democrats had hoped the indictments brought after Trump’s presidency would dent his popularity with Republicans, but the historic first-ever criminal charges against a former US president did little to drive away voters.
“The American people have spoken: the lawfare must end,” Steve Scalise, a top Republican in the House of Representatives, said in a post on X on Wednesday (Thursday NZT). He called on prosecutors “to immediately terminate the politically-motivated prosecutions of President Donald Trump”.
Prosecutors in those cases are now facing new, and possibly fatal, legal hurdles to what have already been complex and unprecedented proceedings.
What will happen to the federal cases?
Trump was charged in two federal cases brought by Department of Justice special counsel Jack Smith: the first over alleged interference in the 2020 election, and the second over his handling of classified materials found at his Mar-a-Lago estate. The first is proceeding in Washington, DC, where it has become bogged down in pretrial proceedings. The second was dismissed by a judge in Florida, and the DoJ has appealed against that dismissal.
When Trump returns to the White House, he will have several avenues to press the DoJ to drop the cases, since it is part of the executive branch he will oversee. The DoJ has a long-standing policy against indicting sitting presidents.
Donald Trump exits the courtroom during a break in his civil fraud trial at the State Supreme Court building in Manhattan on October 18, 2023. Photo / Doug Mills, The New York Times
Trump will be tasked with appointing a new attorney-general, and could choose one inclined to throw out the challenges against him (according to an ABC news report, one candidate under consideration is Aileen Cannon, the judge who dismissed the documents case). He could go as far as personally ordering the dismissal of the cases.
The president-elect had also said that if he won the election he would fire Smith immediately.
How will state cases be affected?
State cases in Georgia and Manhattan are beyond the DoJ’s jurisdiction, so Trump will have a much harder time influencing them as president. But experts argue it is unlikely they will proceed when Trump is in the White House.
In Georgia, he has been charged with an alleged conspiracy to disrupt the 2020 election results there. Several of his co-defendants have pleaded guilty, but Trump has maintained his innocence.
Clark Cunningham, law professor at Georgia State University, thinks Trump could ask the DoJ to file a lawsuit in federal court to pause the Georgia case – which would also be the fastest way for the matter to reach the US Supreme Court, which in July found that former presidents are immune from criminal prosecution for their official acts.
The Georgia proceedings have become bogged down as the district attorney who brought the case, Fani Willis, fights an attempt to disqualify her after it was discovered that she had a relationship with an outside attorney she had hired to help with the prosecution.
Trump is set to be sentenced in the Manhattan case in late November, after the presiding judge agreed to postpone the proceeding until after the election. However, the court has yet to rule on whether all or part of the conviction should be thrown out in light of the Supreme Court’s immunity decision.
Legal scholars have suggested that it would be constitutionally unviable for Trump to be given a prison sentence while in the White House, making it likely that sentencing will be postponed at least until after the next presidential election.
“At this point, Trump has essentially won in all four cases,” said Paul Butler, professor at Georgetown Law.
Could Trump pardon himself?
US presidents have broad authority to pardon those convicted or accused of federal crimes, although that does not extend to Congress’s impeachment powers.
No president has ever pardoned himself. But Trump reportedly floated the idea as far back as his first presidency. Any self-pardon would only extend to federal cases, and it is likely to be challenged – meaning the unprecedented move could end up before the Supreme Court. He might not need to do so, however, if the DoJ dismisses the cases.
Governors or other state authorities such as boards of pardons have the power to pardon state offences.
In the past, the pardon “question would have had a lot of bite, because there was a lot of scope for presidential prosecutions”, said Aziz Huq, professor at the University of Chicago Law School. But after the Supreme Court’s broad immunity ruling, “the question is not really important, because there’s just not that many instances in which the president can be prosecuted”.
Butler argued that Trump could still opt to issue himself a pre-emptive pardon “almost as an insurance method” to guarantee there was “no chance” he might be prosecuted federally after leaving the White House. But an unprecedented self-pardon would almost certainly face legal challenges.
