Donald Trump’s election victory Tuesday night will likely mean the president-elect is getting off scot-free in the four criminal cases he faces, experts tell The Post, as Justice Department officials reportedly moved Wednesday to shut down two federal cases against the former president.
Trump, 78, has been battling two state cases and two federal cases — including one which was tossed out by a South Florida federal judge and one in which he was historically convicted by a Manhattan jury.
According to NBC News, Justice Department officials are considering how to wind down the pair of cases brought against Trump while out of office by special counsel Jack Smith. The DOJ has a longstanding policy of not prosecuting a sitting president and officials there reportedly are aware it would be futile to continue pursuing charges during the two-plus months before Trump’s inauguration Jan. 20.
“Many legal scholars, including myself, agree it’s almost certain he will never see the inside of a jail cell,” Quinnipiac University Assistant Professor of Law Wayne Unger told The Post.
Former prosecutor Neama Rahmani agreed, saying, “Now that Trump has won, his criminal problems go away.”
The 45th president was charged by Smith in Washinton, DC with unlawfully attempting to overturn his 2020 election loss, including by stoking the Jan. 6, 2021, Capitol riot.
Smith also charged Trump with hoarding boxes of national security information at his Mar-a-Lago estate after leaving office and then lying about it when he was caught.
The Florida case was tossed out over the summer by federal Judge Aileen Cannon on the grounds that Smith was unlawfully appointed by Attorney General Merrick Garland. Smith — who is also prosecuting the DC case — is appealing Cannon’s ruling.
In the two federal cases, Trump could simply pardon himself once he’s in office — or direct the new attorney general fire Smith and tell the Justice Department to drop both matters.
With that writing on the wall, Rahmani said, “Jack Smith should dismiss the cases himself,” because both indictments are “dead in the water.”
While no sitting president has ever pardoned themselves before, “the pardon power has been interpreted to be broad and inclusive,” Unger said, making it unlikely that any challenge to a self-granting of clemency by Trump would succeed.
In both federal cases, as well as the Georgia case accusing Trump of unlawfully interfering with the Peach State’s 2020 election result — “it’s pretty well established that a sitting president can’t be prosecuted,” Rahmani said, adding that prosecutors “can’t just wait four years” to resume proceedings without violating the defendant’s constitutional right to a speedy trial.
Therefore, Rahmani theorized, the Georgia case against Trump will join the federal cases on the legal ash heap.
The Georgia proceedings, brought by Fulton County District Attorney Fani Willis, was interrupted after revelations that Willis had an affair with her top prosecutor on the case, Nathan Wade. Trump is appealing to boot Willis from his case and there is no trial date currently set.
Trump could also petition Georgia Republican Gov. Brian Kemp or New York Democratic Gov. Kathy Hochul to pardon him for the state offenses, Unger explained.
Trump was convicted May 30 of 34 counts of lying on business records to cover up reimbursing his then-attorney, Michael Cohen, for a $130,000 hush money payment to porn star Stormy Daniels.
The money, given to Daniels in the final days before the 2016 election, was paid in order to keep Daniels quiet about an alleged one-night-stand with Trump in the mid-2000s, while he was married to his current wife Melania.
In that case, Judge Juan Merchan has said he plans to rule by Nov. 12 on whether the jury conviction should stand in light of a US Supreme Court ruling from July finding Trump had immunity from prosecution for “official” actions as president.
Trump’s sentencing is currently set for Nov. 26 but his lawyers will likely seek a postponement or ask for the sentencing to be held over, Unger said.
“His lawyers are most likely going to argue it’s in the interests of the nation and his new role as the incoming president of the United States that those interests supersede any sentencing or serving any time for a state crime,” the professor explained.
Either way, Merchan is unlikely to sentence Trump to hard time, with Rahmani noting the judge didn’t throw the future president-elect in jail during the trial despite repeatedly violating a gag order.
“Merchan doesn’t have the stomach to imprison a former president or president-elect,” Rahmani predicted. “Nor would it be appropriate for a defendant with no criminal history convicted of Class E felonies, the least serious under New York law.”
New York Law School professor Anna Cominsky acknowledged there are still many questions about what will happen to the state cases, since Trump doesn’t have authority to pardon himself of those charges.
“This is a historic moment for our country and for our criminal legal system,” Cominsky said. “This is truly uncharted territory.”
“We do not know what it looks like for a president-elect to have a pending state sentencing,” she added. “For now, nothing is stopping the New York sentencing from proceeding. That does not, of course, mean that it will not be indefinitely delayed.”
Additional reporting by Ben Kochman
