When Donald Trump entered his third race for the White House, he had not only his country's interests in mind but he might also have his own. The former – and soon-to-be next – president of the United States is facing charges in four separate cases. His return to the Oval Office next January is expected to put an end to at least two of the four proceedings against him and jeopardize the continuation of the other two.
Indicted on August 2, 2023, for attempting to overturn the results of the 2020 presidential election and prevent Congress from certifying the results on January 6, 2021, Trump is unlikely to further be troubled by the serious charge of "conspiracy against the United States."
Special Counsel Jack Smith, who is investigating this case as well as the case involving Trump's handling of classified documents at his Mar-a-Lago residence, asked a judge in Washington, DC, on Friday, November 8, to suspend legal proceedings until December 2 "to afford the government time to assess this unprecedented circumstance and determine the appropriate course going forward."
The US Department of Justice prohibits a sitting president from being indicted in federal cases. This policy, in effect since 1973, prevents federal prosecutors from bringing charges against the US president on the grounds that such an indictment would "unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions."
Throughout his campaign, Trump repeatedly promised to "fire" Smith. After his inauguration on January 20, the new president is expected to appoint an attorney general who could order the criminal charges dropped and dismiss the special counsel.
In early 2029, at the end of his second term, Trump will once again become a citizen subject to prosecution, but a Supreme Court decision on July 1, 2024, which significantly expanded the president's criminal immunity, could complicate potential future prosecutions. With Trump's re-election, it is unclear whether the indictment, revised by Smith's team in August 2024 after the Court's decision, could withstand scrutiny by the Court and probable appeals by Trump's lawyers to come to trial.
The case involving the illegal storage of classified government documents at Trump's Florida residence is likely to meet the same fate as the January 6 case. The difference, however, is that charges were already dismissed in July 2024. Federal Judge Aileen Cannon ruled – contrary to 25 years of federal legal precedent – that Smith's appointment was illegal.
Smith's team appealed this decision on August 26. With the accused back in power, the issue at stake in this appeal, which is still ongoing, is no longer so much about continuing to prosecute Trump and more about overturning Judge Cannon's decision, which risks weakening the judiciary's ability to appoint special prosecutors.
Judge Cannon's decision came under heavy criticism last summer, attracting particular attention given that she had been appointed by Trump himself in May 2020 and that this was not her first surprising decision in favor of the former president. Indeed, many observers and former federal judges publicly questioned Cannon's impartiality. According to ABC News, her name is currently circulating as a possible frontrunner for US attorney general.
In this case, Trump and 14 others are accused of attempting to change the results of the 2020 presidential election in the state of Georgia and subverting the will of its voters. After a two-and-a-half-year investigation led by Fulton County District Attorney Fani Willis, Trump was indicted in August 2023 by a grand jury on 13 counts.
But unlike the January 6 and classified documents cases, Trump is not being prosecuted by the federal justice system, but rather by the justice system of the state of Georgia. The federal Department of Justice in Washington, DC, has no power over state judiciaries. Moreover, in the highly unlikely event that Trump is sentenced by a state judge before taking office on January 20, 2025, he would not be able to pardon himself, since this power only applies to federal convictions. Only the state governor has this power. This is why Trump's lawyers have been trying, since the summer of 2023, to take the case out of Willis's hands and make it a federal case – without success.
The future of the case remains highly uncertain for the time being. Experts believe it unlikely that a state judge would allow Willis to continue prosecuting Trump once he becomes president again, due to the same constitutional concerns that prevent the Justice Department from prosecuting him at the federal level.
This case could therefore be frozen for as long as Trump is president. But even while it is paused, it may not survive attacks from Trump's lawyers.
They have two options. The first is to disqualify Willis and take the case out of her hands. Trump's lawyers made an initial request to do so in January 2024, but the judge in charge of the case, Scott McAfee, denied it. They appealed, and the case remains ongoing, with hearings for both sides scheduled for December 5. A decision is not expected before March 2025. Many legal experts believe that, if Trump's defense succeeds in dismissing Willis, no other state prosecutor will take up the case.
If Trump's appeal fails, the case is likely to go to the Supreme Court of Georgia for a final ruling. And even if Trump's lawyers fail to remove Willis from the case, the chances of the case's reaching trial will diminish over time.
On May 30, in the so-called Stormy Daniels case, Trump became the first former president to be found guilty in a criminal case when a New York City grand jury upheld all 34 charges against him.
New York judge Juan Merchan had initially scheduled the sentencing for July 11, but the Supreme Court's July 1 decision on criminal immunity for former presidents forced him to postpone the sentencing to September 18, and then again to November 26. The judge is first expected to rule on November 12 on whether he can even issue a sentence. Trump's lawyers could then challenge his decision, arguing that a president-elect should be entitled to the same protections as a sitting president, or asking for a further extension – or both.
Experts agree that if Judge Merchan issues a sentence anyway, a prison sentence for Trump would probably be deemed unconstitutional, according to the Financial Times. It is therefore possible that the judge will not be able to issue a sentence before Trump leaves the White House. But even if a different penalty is issued, the future president would almost certainly appeal. Meanwhile, his lawyers have asked the United States Court of Appeals for the Second Circuit to take the case out of local jurisdiction, as they tried with the case in Georgia, and make it a federal case, which would then be subject to influence by a Trump administration.
Translation of an original article published in French on lemonde.fr; the publisher may only be liable for the French version.