As Trump wins White House, special counsel weighs how to end trials
President-elect Donald Trump is seen at a campagin rally in Uniondale, Long Island, New York on Sept. 18. (AP file photo by Andrea Renault/STAR MAX/IPx 2024)
As Donald Trump clinched his resounding presidential victory early Wednesday, the four criminal cases against him seemed to begin their march to dissolution.
The election win prompted special counsel Jack Smith to start discussing how to wind down the two federal prosecutions of the president-elect, according to a person familiar with the internal deliberations, who spoke on the condition of anonymity because of the sensitivity of the matter. One case accuses Trump of hoarding highly classified documents after leaving the White House; the other charges him with trying to overturn the results of the 2020 presidential election.
In New York, meanwhile, Trump’s lawyers were expected to try to delay his upcoming sentencing in state court on 34 felony counts of falsifying business records to conceal a hush money payment to an adult-film actress.
The possible slowing down of the federal cases—which could in theory barrel forward until Inauguration Day—could give Smith time to deliver a final report detailing the findings of his two probes to Attorney General Merrick Garland before Trump becomes the 47th president.
Garland has indicated that he would make special counsel reports public if they reached his desk.
A Trump campaign spokesman said Trump’s victory at the polls shows that Americans believe the cases against him are political.
“It is now abundantly clear that Americans want an immediate end to the weaponization of our justice system, so we can, as President Trump said in his historic speech last night, unify our country and work together for the betterment of our nation,” spokesman Steven Cheung said in a statement Wednesday.
Smith must also weigh how to proceed with his appeal of U.S. District Judge Aileen M. Cannon’s decision to dismiss the Florida classified-documents case. The judge, a Trump appointee, ignored decades of legal precedent to rule that Smith’s appointment was unlawful.
Justice Department officials have expressed concern that Cannon’s decision could jeopardize not just future special counsels but any federal prosecutor or senior official serving in a temporary position, The Washington Post reported in August.
Dropping the appeal may not be a simple decision for Smith, because prosecutors want the decision overturned not only to resurrect the case but also to protect Justice Department appointments during the Trump administration and beyond.
Trump’s four criminal cases, including a state election-obstruction case in Georgia, were brought within months of one another in 2023.
They initially seemed as if they could jeopardize his chances of being elected again to public office. But Trump denied wrongdoing in every case, insisting that the charges were proof that the government was trying to hurt him politically. Soon, his support skyrocketed. Republican elected officials rallied around him, echoing his claims that the justice system was “rigged.”
Trump’s lawyers filed every possible appeal and sought delays wherever they could, at times citing his presidential campaign as a reason he could not meet court deadlines or attend proceedings. They succeeded in pushing all but the New York trial past the presidential election, in the process winning a landmark Supreme Court ruling that greatly expanded presidential immunity and narrowed the federal election-interference case in D.C.
As Trump prepares to return to the White House, each of the criminal cases is in jeopardy.
Trump is scheduled to go before New York Supreme Court Justice Juan Merchan on Nov. 26 to learn his punishment in the hush money trial, which some experts have said would be unlikely to include jail time - even if he had lost the election. His election victory could make it harder to impose any sentence, even probation.
It was not clear Wednesday when Trump’s lawyers would formally seek to postpone or reschedule the sentencing. Trump’s attorney Todd Blanche did not respond to messages. The sentencing was originally scheduled for July but was delayed until November so Trump could argue that his conviction was built on evidence that should have been disqualified under the Supreme Court’s July 1 immunity ruling.
A spokeswoman for the Manhattan district attorney’s office, which prosecuted the case, declined to comment.
Trump vowed as a candidate that he would “fire” Smith to halt the federal trials. There is no doubt that he will try to appoint an attorney general committed to doing so if Smith does not wind down the cases on his own.
But even without such action, Trump would not go on trial anytime soon—if at all. The Justice Department has long recognized that presidents are immune from criminal prosecution while in office. As Justice Department attorney Michael Dreeben acknowledged to the Supreme Court in April in the case involving Trump’s potential immunity from prosecution: “He can’t be prosecuted while he’s a sitting president.”
A spokesperson for Smith’s office declined to comment. So did a spokesperson for the U.S. attorney’s office for the District of Columbia, which is prosecuting people charged in the Jan. 6, 2021, Capitol riot. In this year’s campaign, Trump made pardoning at least some of those defendants a signature promise.
Legal experts say new presidents and attorneys general in the past have not removed special counsels appointed by their predecessors. However, in past administrations, those special counsels have not been prosecuting the new president.
Directly ousting Smith “could harm the reputation of the department and make it look like the department was a political entity,” Mary McCord, who served as acting assistant attorney general for national security during the Obama administration and the beginning of the Trump administration, said in an interview before the election.
Even after he becomes president, Trump will owe potentially hundreds of millions of dollars in civil fines and judgments related to a business fraud case brought by New York Attorney General Letitia James and a pair of defamation and sexual assault lawsuits brought by the writer E. Jean Carroll. He is appealing all three of those judgments, however.
The judge in the federal election-obstruction case in D.C., U.S. District Judge Tanya S. Chutkan, has been deciding what allegations can remain in the indictment, based on the Supreme Court’s immunity ruling. Both the president-elect and the special counsel’s office face deadlines on Nov. 21 and in December to file legal arguments over Trump’s challenges to Smith’s appointment as special counsel, and to whether Trump can be prosecuted while not in office for actions taken while president.
Even if Chutkan ruled on those matters before Trump was inaugurated, her decision probably would be appealed, with no trial date on the horizon.
The 11th Circuit has not yet scheduled oral argument in the appeal of Cannon’s dismissal of the Florida case. Any eventual ruling could also be appealed to the Supreme Court, again delaying the case well past the time when Trump will take power. In addition, Trump’s Justice Department could drop the appeal, refusing to defend the Biden administration’s position in court.
Neither Trump nor his attorney general can halt the state cases he faces. But prosecutors in Georgia will struggle to go forward with trying him for allegedly attempting to overturn the state’s 2020 election results, because federal guidelines say a president should not stand trial while in office. And, while it has never been tested, legal experts say those guidelines would probably extend to state cases.
Fulton County District Attorney Fani T. Willis (D) brought charges against Trump and more than a dozen allies in August 2023. The case was paused months ago after Willis was accused of having an inappropriate romantic relationship with an outside lawyer she hired to lead the prosecution.
Trump and some of his co-defendants have appealed Fulton County Superior Court Judge Scott McAfee’s decision not to remove Willis and her office from the case. Oral arguments in that appeal are scheduled for Dec. 5, with a decision by March and an appeal to the state Supreme Court expected after that.
Steve Sadow, Trump’s lead attorney in Georgia, previously argued that if Trump regained the presidency, the case would have to be delayed until 2029. “Under the supremacy clause and its duty to the president of the United States, this trial would not take place at all until after he left his term of office,” Sadow said.
Willis, who won her own reelection race Tuesday, declined through a spokesman to comment. She has strongly implied in the past that she will seek to move forward with the case against Trump unless a court blocks her.
Even if proceedings are paused against Trump, the Georgia election-interference case will move on for the 14 others who are charged, including former White House chief of staff Mark Meadows and former New York mayor and Trump attorney Rudy Giuliani. A trial against them could produce politically damaging revelations about Trump.
But Trump’s Republican allies in Georgia and Washington, who have already sought to stymie the case, are expected to continue those efforts, including trying to force Willis to testify before a Georgia state Senate subcommittee investigating her and her office.
