By winning Tuesday’s presidential election, and doing so by enough votes to remove any doubt, former President Trump very likely will avoid any other form of accountability – except the judgment of history.
Very soon, it appears, the four criminal cases against Trump will begin to evaporate – including the one in which a New York jury found him guilty of 24 counts, a verdict that might have sent him to prison if it had been enforced earlier. An existing sentencing date, November 26, probably will not occur.
Not much is clear about Trump’s legal status between now and January 6, the day when a joint session of Congress is expected to count the Electoral College votes that almost certainly will officially make him President. President Biden will help assure that this transfer of power goes ahead smoothly; there will be no repeat of the January 6, 2021, violent attack on the U.S. Capitol.
During the nine weeks between now and January 6, Trump will be the apparent President-elect or the official President-elect. The “apparent” label is the result of the victory that he appears to have won on Tuesday, when the peoples’ votes were counted by election officials.
On December 11, he is expected to become the “official” President-elect when the Electoral Votes he won are formally “ascertained” by officials of the states that he won. The human beings, the actual Electors chosen by the people to carry out their choice, will meet on December 17 in their own states to cast their votes, confirming him as President-elect.
Under the text of the Constitution, being President-elect or actually being President does not insulate that person from any accountability for past crimes, under either federal or state laws. Last July 1, however, the Supreme Court interpreted the Constitution – and did so in a binding ruling – that former Presidents are immune from being prosecuted for crimes committed while carrying out the official duties of the Presidency.
That decision, however, said nothing about immunity for a President-elect (but that does not matter for Trump because the immunity shield applies to him as a former President).
Since 1973, a President who is actually in office also has been declared immune to criminal prosecution while serving. That represents a Justice Department policy; it is not binding under the Constitution or in the courts. That policy, though, does not apply to a President-elect; that situation simply had not arisen before Trump.
Now and for the next several weeks, the status of President-elect is likely to gain a form of immunity, all of its own. The Justice Department is likely to interpret the protection for sitting Presidents to extend now to Presidents-elect, too. And, very likely, the courts – federal and state – will go along with that if it were to be tested.
There are already leaks out of the Justice Department that the official leading the federal criminal prosecution of Trump, Special Counsel Jack Smith, and his superiors in the Department are already planning how to bring to an end Trump’s prosecution in Washington, D.C., for the events surrounding the January 6 uprising and his separate prosecution in Florida for mishandling national security documents after he had left the White House in January 2021. The process of winding-down those cases may take a few weeks.
That leaves the prosecution in New York state court, in which Trump was convicted last May, and the state prosecution in Georgia.
In the New York case, as of now, Trump is scheduled to be sentenced for those convictions on November 26. But, by one legal means or another, that sentencing probably will either be cancelled or postponed because Trump is now on his way to becoming President again.
Among other considerations, it might be extraordinarily complicated to carry out a prison sentence at any point for Trump between now and January 6, because that would gum up the planning to transfer the power of the government to him as President-elect. After January 6, a prison sentence would be out of the question, at least as a practical matter.
The jurist handling the New York case, State Judge Juan M. Merchan, could act on his own to put off or cancel the sentencing, but he is more likely to call for written legal arguments from both sides on his options. Either way, there is almost certainly no risk of prison time in that case.
While being elected President carries no legal weight under state criminal law, it is virtually impossible to imagine that the federal courts, including the Supreme Court, would allow a newly elected President to be either prosecuted or convicted of crime.
Being free of a criminal conviction is not a qualification for the Presidency, under the Constitution, and government at no level can change what the Constitution specifies for one elected to that office. Only a constitutional amendment could change that, formally.
Finally, the Georgia case, which arises out of the January 6, 2021, uprising and the dispute over Trump’s defeat in 2020, is now stalled in an appeal in a state court over a preliminary legal question about the team of prosecutors who filed those charges against Trump. As Trump prepares to become President again, and as he enters the Presidency on Inauguration Day, the Georgia case almost certainly will fade away.
As for history: Trump will remain the only American President to be prosecuted for a crime, the only one convicted of a crime, and the only one who was elected anew to the Presidency while being a convicted felon. None of those realities will be extinguished, and will forever remain factually established.
Trump, of course, probably would retain the constitutional authority to pardon himself for any criminal activity, but that audacious act, if done, would not erase Donald Trump’s truly unique “rap sheet.”