By Perry Stein, The Washington Post (c) 2024
When we started this newsletter last year, Donald Trump was still six months away from clinching the Republican presidential nomination. His four criminal cases were making their way through the courts and each seemed to have a shot at going to trial before the November election.
A lot has changed.
Trump’s victory at the polls last week is quickly reverberating in the courtrooms, with special counsel Jack Smith figuring out how to wind down the two federal cases against the former-turned-future president.
Welcome to our post-election edition of the Trump Trial newsletter, where I will help you make sense of what Trump’s election win means for the criminal cases against him. I’ll keep writing this newsletter each week as news develops but, well, we don’t expect much movement – if any – in these cases once Trump is sworn in as the 47th president on Jan. 20.
Okay, let’s get started.
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What’s ahead
– Once Trump is president, he will likely urge his attorney general to drop the two federal cases against him and get rid of Smith. (Trump has vowed to fire Smith and Republicans are calling for his investigation.)
– There’s an alternative scenario: It’s possible that Smith ends the cases on his own before Trump is sworn in and writes a special counsel report detailing his findings, which could become public.
– All this means neither federal case will go to trial. It’s also extremely (extremely!) unlikely that the Georgia state election interference case would go to trial while Trump is in office.
Here’s a look at what happened in each of these cases last week, and how Trump’s presidential victory could affect them.
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D.C.: Federal case on 2020 election
The details: Four counts related to conspiring to obstruct the 2020 election results.
Where the case stands: When the Supreme Court issued its new and broad definition of presidential immunity in July, it kicked the case back to the trial judge. U.S. District Judge Tanya S. Chutkan is now overseeing the legal proceedings to determine which allegations in the superseding indictment may still be prosecuted under the Supreme Court ruling. Whatever she decides would likely be appealed until the case again reaches the nation’s highest court.
What happened last week: Chutkan granted prosecutors’ request to suspend upcoming filing deadlines – a clear sign that Smith is not trying to push forward with the prosecution. Chutkan gave Smith a Dec. 2 deadline to explain in writing how he wants to proceed with the case. So it’s unclear if we will ever learn how she would rule on the immunity questions.
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Nerd word of the week
Vacate: Smith asked Chutkan on Friday to vacate the remaining deadlines in the pretrial schedule. That means that Smith wanted the judge to cancel or annul the court-ordered trial schedule. Chutkan agreed and suspended – or vacated – upcoming deadlines in the case.
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New York: State hush money case
The details: 34 charges connected to a 2016 hush money payment. A jury found Trump guilty on May 30.
Where the case stands: This is the only case that has gone to trial. Sentencing is scheduled for Nov. 26, but Trump’s lawyers will probably try to delay that now that he is the president-elect. Experts have disagreed on whether Trump might have faced jail time if he lost the election. His victory makes it harder to impose any sentence, even probation, as he prepares to return to the Oval Office.
Trump’s attorneys are trying to get the entire conviction overturned based on the Supreme Court’s immunity decision, which said prosecutors could not introduce any evidence at the trial of a former president that includes actions that are covered by presidential immunity. While the bulk of the New York trial focused on activity that occurred outside of the White House, some of the evidence details interactions from Trump’s first term.
The judge overseeing the case could rule on this issue as soon as this week. That decision can also be appealed.
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Florida: Federal classified documents case
The details: Trump used to face 40 federal charges over allegations that he kept top-secret government documents at Mar-a-Lago – his home and private club – and thwarted government demands to return them.
Where the case stands: U.S. District Judge Aileen M. Cannon dismissed the entire case on July 15, saying Smith was unlawfully appointed as special counsel and has no authority to bring the indictment. Smith has appealed that decision to the U.S. Court of Appeals for the 11th Circuit, and prosecutors have a filing deadline later this month.
– Smith can either drop the appeal on his own or he can press forward and risk Trump’s attorney general dropping it.
– The Justice Department will not prosecute a sitting president, so the case won’t go to trial. But dropping the appeal would not be a simple decision. 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.
– Prosecutors hope to win the appeal not just to resurrect the case against Trump, but also to protect Justice Department appointments during the Trump administration and beyond.
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Georgia: State case on 2020 election
The details: Trump faces eight state charges for allegedly trying to undo the election results in that state. Four of his 18 co-defendants have pleaded guilty.
Why it’s stalled: The case has been on pause while the Georgia Court of Appeals hears an appeal from Trump and some of his co-defendants seeking to disqualify Fulton County District Attorney Fani T. Willis, the top prosecutor. The defendants argue that Willis improperly spent taxpayer dollars while in a romantic relationship with an attorney she hired to work on the case. Oral arguments for the appeal are set for Dec. 5.
– Trump, once he is president, and his attorney general will have no power to dismiss a state case. But it almost certainly won’t go to trial while he is in office. Federal guidelines say a president should not stand trial during his term. While it has never been tested, legal experts say those guidelines would probably extend to state cases.
– The prosecutions against Trump’s co-defendants could move forward while he is president. Some of Trump’s interactions with his 2020 election allies could come under fresh public scrutiny while he is in the White House.
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Question Time
Q: Can the two federal cases against Trump be resurrected when he leaves the White House in 2029?
A: There’s a lot of legal theorizing of what could happen. But some experts believe there is legal maneuvering that Smith can use to preserve the cases – even if salvaging the cases in 2029 seems like an unlikely scenario.
“This is a really unprecedented situation, and it really depends on how the case is withdrawn,” said Claire Finkelstein, law professor at the University of Pennsylvania.
If prosecutors no longer want to try a case, they generally have to lodge a request with a judge and the judge must decide to formally withdraw it. If the judge dismisses it with prejudice, prosecutors cannot retry it. But if they dismiss without prejudice, then it can in theory be brought to court again, though questions around double jeopardy could still loom.
Finkelstein said, for example, if Trump fires Smith and then moves to get the case dismissed, Chutkan could agree to dismiss the case without prejudice – giving prosecutors the possibility to again bring the case against Trump when he leaves office.
There’s also an unlikely scenario in which a judge rejects an attempt by prosecutors to drop the cases against Trump – but it would still be difficult to try a case if prosecutors don’t want to do so.
Even if unlikely, Finklestein said Smith’s ideal scenario would be to agree to pause, or stay, the proceedings until Trump leaves office.