Conceding that Donald Trump will be the next U.S. President, the special federal prosecutor moved quickly on Friday to begin the process of ending Trump’s prosecution for multiple crimes growing out of the attempt to overturn the 2020 election.

Special Counsel Jack Smith on Friday afternoon urged a federal judge in Washington, D.C., to put the January 6 uprising case on hold given the “unprecedented circumstances” that had come on election day – that is, Trump became President-elect while facing unique charges of committing crimes while in office.

Smith asked, and U.S. District Judge Tanya S. Chutkan promptly agreed, to delay all proceedings in that case until December 2 when Smith will “determine the appropriate course going forward.” He made a passing mention of “Department of Justice policy” – a reference to the policy, in effect since 1973, that the Department will not prosecute a President in office. Smith appeared willing to have that policy extend to a President-elect; Trump is still weeks away from assuming the office formally.

Judge Chutkan took almost no time to suspend all filing deadlines in the case, and said she would expect a “status report” from the government on December 2 on how to move forward. Smith told the judge that Trump’s legal team had been consulted and did not object to that approach.

Smith is also the lead prosecutor in the Florida case in which Trump faces multiple criminal charges for his handling of highly classified national security documents at his Florida golf course home, Mar-a-Lago, after leaving the White House following his 2020 defeat.

That case, too, is likely to be scuttled, although the Department faces more of a dilemma than it did in the January 6 case: as it stands now, the Florida case is a threat – with or without Trump involved — to the future of appointments like Jack Smith’s as special prosecutor. The judge in that case, U.S. District Judge Aileen M. Cannon – in mid-July dismissed all charges in that case, ruling that Smith’s appointment was unconstitutional.

Leaving that precedent undisturbed in federal court records would pose a potential challenge to the future use of special prosecutors in federal cases in general, unless Congress were to pass a new law giving permission to name such officers. It might take some time for Smith and Justice Department superiors to figure out what exactly to do about Judge Cannon’s decision, although it seems clear that no trial would ever occur in that case. The judge’s dismissal of the case is now under review in a federal appeals court.

The other two criminal cases against Trump – one in New York state court and one in Georgia state court – are also likely to be affected by Trump’s election to the Presidency. The Justice Department policy against criminal prosecution of Presidents does not apply to state cases, but the constitutional doctrine of federal supremacy (under Article VI) and the Supreme Court’s decision last summer giving all Presidents broad legal immunity under the Constitution no doubt will come into play in both of the state cases.

The New York case is the only one in which Trump has been convicted. A jury in Manhattan last May found him guilty on all 34 counts of illegally covering up a sex scandal that would have become publicly known during his 2016 campaign that resulted in victory.

The judge in that case, Juan M. Merchan, is currently scheduled to issue a ruling next week on a plea by Trump’s lawyer to overturn the verdict and prevent a new trial, based on the Supreme Court’s presidential immunity decision. If Merchan rejects that plea, his current plan is to impose a sentence on Trump at a hearing now set tentatively for November 26.

Because of Trump’s election, the doctrine of federal supremacy may make it difficult to keep the New York and Georgia prosecutions intact.
If, as seems likely, all four prosecutions collapse completely, it would mean that Trump – because of his election this week – will have avoided all threats in court to his personal freedom. He would remain a convicted felon, though – unless that conviction were to be erased by the courts.

There is nothing in the Constitution that would prohibit a person convicted of a crime from becoming President. And any attempt to impose a conviction ban on a President probably would not survive a constitutional challenge, under Supreme Court precedents.