WASHINGTON—Experts told The Epoch Times that President-elect Donald Trump’s victory on Nov. 5 spells the end of multiple prosecutions against him and effectively foreclosed the possibility of him serving any related prison sentence.
Trump has already said that he would quickly fire the man in charge of his two federal prosecutions—special counsel Jack Smith—upon entering office.
Retaking the presidency has afforded him protections beyond what the Supreme Court granted him in its presidential immunity ruling this year, according to experts.
Here’s a breakdown of the legal implications and next steps for his four cases in Georgia, Florida, Washington, and New York City.
It’s unclear how exactly the pre-trial process will continue before District of Columbia District Judge Tanya Chutkan, who is overseeing the election interference case brought against Trump by Smith, but it remains all but certain that the case will never reach trial.
“They’ve already moved to dismiss the indictment,“ Heritage Foundation Vice President John Malcolm told The Epoch Times. ”All they would have to do is supplement it on the basis of separation of powers.”
Peter Carr, a spokesman for the special counsel’s office, declined to comment but directed The Epoch Times to a 2000 memo from the Department of Justice (DOJ) Office of Legal Counsel.
It states that “indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
Neama Rahmani, a former federal prosecutor, told The Epoch Times that Smith should withdraw the case himself.
“Smith should dismiss the case, and if he doesn’t dismiss, the defense should file a motion to dismiss, which I expect Judge Tanya Chutkan to grant,” Rahmani, who served in former President Barack Obama’s DOJ, told The Epoch Times.
He said Trump could also request to stay all pre-trial proceedings until his presumptive inauguration in January.
In the Florida documents case, Judge Aileen Cannon dismissed Smith’s prosecution of Trump this summer, reasoning that Smith’s appointment was unconstitutional.
Her opinion followed similar concerns from Supreme Court Justice Clarence Thomas’s concurrence in Trump v. United States, the decision that held that presidents enjoy immunity from criminal prosecution for official acts performed while in office.
Trump has cited both of those opinions in urging Chutkan to dismiss the Washington case.
While both of these cases are almost certainly dead in the water, neither will likely result in a national precedent on the legality of Smith’s appointment as a special counsel.
“I think Cannon would have dismissed that case anyway based on presidential immunity,” Rahmani said.
Like the Washington case, the Florida classified documents case will likely be dismissed from the U.S. Court of Appeals for the 11th Circuit, where Smith is currently seeking an appeal of Cannon’s decision.
Her ruling pointed to how Congress let the Independent Counsel Act, which allowed the Justice Department to appoint special prosecutors, expire in 1999.
While Smith pointed to other laws to justify his appointment, Cannon rejected those arguments.
Smith’s status as a special counsel, rather than an independent counsel, meant that he was subject to DOJ regulations and couldn’t continue with his cases against Trump even if he wanted to do so, Malcolm said.
A spokesperson for the special counsel’s office did not respond to The Epoch Times’ request for comment before publication.
New York Conviction
A jury found Trump guilty in May on 34 charges that were classified as minor felonies that nonetheless carry the potential for jail time. The case faced intense legal scrutiny with many, including Malcolm, speculating that it could face reversal on appeal.
The trial court judge overseeing that case, New York Supreme Court Justice Juan Merchan, set a sentencing date for the end of this month, but that could be delayed.
Merchan has yet to rule on Trump’s arguments surrounding presidential immunity. A decision on that is expected on Nov. 12.
In September, a federal judge said that he thought the payments to adult actress Stephanie Clifford that formed the basis of the case “were private, unofficial acts, outside the bounds of executive authority.”
However, that holding came as part of a denial of Trump’s request for emergency relief from proceedings in state court and did not foreclose Trump’s ability to make immunity-related arguments in other courts.
Even if Merchan decided to sentence Trump, that sentence will likely encounter substantial pushback based on constitutional arguments.
Experts previously told The Epoch Times that the supremacy clause of the U.S. Constitution would prevent Trump from serving prison time while in office.
“The supremacy clause makes it clear that states cannot interfere with the president’s ability to conduct his job, and … the president can’t do what he has to do to run the country from prison,” Malcolm told The Epoch Times on Nov. 6.
“The Secret Service would not be able to guarantee his safety in prison, so he is not going to see the inside of a jail cell even if the conviction is upheld.”
Rahmani questioned whether the supremacy clause would have that effect, noting that “we’re in uncharted legal waters.”
He nonetheless said that it “wouldn’t be appropriate” to sentence Trump to prison given his lack of criminal history, noting that it was likely that Trump would be fined.
Rahmani said Merchan could also allow Trump to appeal the conviction but those types of appeals were rare.
“It’s more likely that Trump is fined and sentenced to no time and he has to appeal the conviction,” he said. “This is all unprecedented and we’re in uncharted legal waters.”
Fani Willis’s Prosecution in Georgia
Like Trump, the prosecutor charging him in Georgia won reelection this month.
It’s unlikely that Fulton County District Attorney Fani Willis will be able to continue her prosecution against Trump, however, even if she wins in the state appeals court, where the defense is seeking her disqualification from the case.
A hearing on that issue is scheduled for early December and could reach the Georgia Supreme Court.
As with the New York case, continuing to pursue Trump in Georgia would create potential conflicts with the U.S. Constitution.
Malcolm said the supremacy clause would likely interfere with Willis’s attempt to continue the prosecution but noted that the question of state prosecutors continuing against presidents was a “brand new question.”
“There’s nothing that would prevent a state prosecutor from prosecuting a sitting president,” Georgia criminal defense attorney Keith Johnson told The Epoch Times, “especially when that individual was the president when the alleged offense occurred.”
Malcolm noted that the case could be held in “abeyance” or stalled without the statute of limitations running out—leaving open the possibility that a prosecution could continue against Trump after he finishes his second term in office.
“If she dismissed the indictment and then tried to charge him again after the statute of limitations had run, then she’d be out of luck,” he said.
“But if he was indicted within the statute of limitations, and the case is basically frozen in time, that would not present a statute of limitations problem.”
Rahmani questioned the effectiveness of that type of move from Willis, saying Trump could raise objections based on a defendant’s right to a speedy trial.
Johnson doubts the prosecution would proceed but also questioned the speedy trial defense.
He said that while Trump could assert a right to a speedy trial under the U.S. Constitution, he effectively waived that under state law.
It’s also questionable how much the public would support continuing the prosecution against Trump.
“Trump’s overwhelming win leads me to believe that people weren’t persuaded that he is a felon who’s unfit for office,” Rahmani said.
Malcolm said he viewed the election as a kind of referendum on the prosecutions against Trump.
“I think that a lot of people felt as if these were … politicized prosecutions, and I think [people] judge him as more a victim than an offender,” he said.
Former Attorney General William Barr, who has been critical of Trump, similarly said prosecutors should drop the cases against Trump.
“The American people have rendered their verdict on President Trump, and decisively chosen him to lead the country for the next four years,” Barr told Fox News Digital.
He headed the DOJ in the Trump era.
“They did that with full knowledge of the claims against him by prosecutors around the country and I think Attorney General [Merrick] Garland and the state prosecutors should respect the people’s decision and dismiss the cases against President Trump now,” Barr said.
Other Defendants
Trump was one of 19 people charged in Willis’s prosecution last year.
Among the co-defendants listed were former Trump advisers, including Rudy Giuliani and his former chief of staff, Mark Meadows.
Johnson doubts Willis will voluntarily back down from pursuing either Trump or his co-defendants but noted that Meadows and others lack the level of protection Trump secured with his electoral victory.
“I think she’s going to continue to move forward,” Rahmani told The Epoch Times, referring to the case against the co-defendants.
Outside Willis’s potential disqualification, the Georgia case faced another setback after the judge overseeing the case, Fulton County Superior Court Judge Scott McAfee, dismissed two counts from the indictment in September—leaving just five of the 13 original criminal counts.
Experts agreed that Trump could not pardon his co-defendants upon entering office given that his pardon power doesn’t extend to state-level prosecutions.