What will happen to the charges against Trump?

There’s no gentle way to put this, so let’s be direct: all four criminal cases against Donald Trump are effectively over.

Prosecutors can still take action to memorialize their findings for the history books and as a warning to the American public. But Trump will not face another criminal trial, and he will not go to jail. He gambled his liberty interests on regaining the presidency—an astonishing all-or-nothing bet—and he won.

Let’s start with the two federal cases. Trump has already done that announced that he will fire Special Prosecutor Jack Smith “in two seconds” and Smith reportedly has discussed within the DOJ its plans to close the cases. There is an ongoing academic debate over whether the president has constitutional authority to fire the special counsel. Federal regulations provide that the Attorney General may fire a special counsel, but the competing “unitary executive powerThe theory holds that the president is not just the head of the executive branch – he is the executive power and can essentially do whatever he wants in it. Either way, Trump has an easy solution: He will appoint an attorney general to do his dirty work and fire the special counsel and the cases himself if necessary.

Smith faces another structural obstacle that goes beyond Trump’s promise to fire him. Long lasting Department of Justice Policy prohibits indictment and prosecution of the sitting president. We’ve never before encountered a scenario where the subject of an investigation – or in this case, an actual indictment – has become the sitting president during the case. But here we are. And Smith seemingly acknowledges that whether he is fired or not, his case must end when Trump takes the oath of office on January 20.

Smith still has two and a half months left in his term, but he won’t get a meaningful opportunity to do much of substance in court between now and Inauguration Day. Both of his cases are stuck in appellate purgatory; the January 6 case is still embroiled in litigation over the scope of the case Trump’s immunityand the secret documents case is over rejected especially since the district judge ruled that the entire special counsel regime is unconstitutional. Trump will be back in power well before both issues are fully resolved.

But Smith has one more chance to make his case, at least on paper. Under the aforementioned regulations, a special counsel must write a final report outlining his investigative findings and prosecution or denial decisions. Normally, a special prosecutor would only write the report at the end of his case, ideally after the trial. But Smith may reasonably conclude — based on Trump’s public statement of intent to end both cases and the DOJ policy against prosecuting the sitting president — that it is appropriate to write the report now. It is unclear whether we would learn much revealing or new; Smith has already filed detailed charges in both cases and an extensive 165-page recitation of his evidence in the 2020 election case. But if he wants to prepare documents formally setting out his findings in full, he will have the opportunity to do so before his term ends.

If this feels like thin gruel to someone hoping for a full investigation of the allegations through a lawsuit, it is. Some blame Trump for his slowdown strategy. But that’s like an NBA coach blaming his opponent for trying to block all his team’s shots; that’s how the game is played. With Trump’s personal liberty at stake, his lawyers raised constitutional defenses that any semi-competent lawyer would raise — and they won. That is not foul play, and it is not their “fault” that these cases will never be tried. They did their job.

If you want to place blame, consider this: “Every day that passes makes a potential federal prosecution of Trump less likely and more fraught for the Justice Department if it does happen… The debate will surely rage on over whether AG Merrick Garland has set his sights on Trump in a meaningful and pragmatic way. One day we will find out. Whatever happens, the delay in reaching a resolution is counterproductive and inexcusable.” That’s something I wrote in May 2022 – six months before Garland appointed Smith and a year and three months before the DOJ finally got around to filing charges. It should come as no surprise that the clock was running.

Then we have the two state cases in New York and Georgia. We’ve seen many surreal courthouse scenarios in recent years, and we’re still weeks away from an all-timer: the criminal sentencing of the newly elected president in Manhattan on November 26. reportedly will ask the judge to vacate the conviction, and they have offered him several legal off-ramps so it may not happen at all. If it does go ahead, it is a 50-50 matter whether the judge will sentence Trump to prison. But even if he does, it will be purely ceremonial. There is no way the president-elect would be incarcerated during the transition period or during his presidency, and a normal defendant in Trump’s position would likely be released on bail anyway pending the appeal (meaning he has the right to appeal before serving a sentence).

Finally, there is the Fulton County District Attorney’s 2020 election interference case, which is already on the verge of collapsing under its own weight. The investigating judge has thrown out five of the thirteen original charges against Trump. And a Georgia appeals court is now considering prosecutor Fani Willis’ alleged conflict of interest (arising from her relationship with former lead prosecutor Nathan Wade) and prosecutorial misconduct (due to her inflammatory extrajudicial statements about the case, which the court called judge “legally inappropriate”). The signals are ominous for the public prosecutor.

Once again we are confronted with a difficult constitutional question: can a state prosecution take place against a sitting president? Once again, keep an eye out for intellectually stimulating legal arguments from brilliant scholars. But I’ll end the suspense: that’s not possible. If state-level authorities in New York try to jail the sitting president, or if the courts in Georgia try to bring him to justice, the federal courts will scrutinize it. Supremacy clauseor the lesser-known “You have to be kidding me” clause. Our executive branch simply cannot function and effectively enforce the law of the land when the commander-in-chief is in court or behind bars – at the charge of the state, no less.

Theoretically, both state cases could be suspended until Trump’s term ends in January 2029, and then resume. But Trump would have an argument that such a delay would affect his right to a speedy trial (even if the delay is due to Trump’s own status as president). And again, we have to take into account the practical aspects. Will we really see state-level prosecutors (whoever they may be in four years) attempting to imprison an 82-year-old, two-term former president for conduct that occurred thirteen years ago (such as in the hush money case)?

We will have plenty of time to ponder the meaning of all this, and it is indeed difficult to see that Trump will completely skate on everything he has done. But a hard look at the practical aspects surrounding the prosecution of the former and future president shows that this outcome has always played a role. It appears that in our courts, harsh political reality prevails over lofty ambitions.

This article also appears in the free CAFE Short newsletter. More analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance and other CAFE contributors can be found at café.com.

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