President-elect Donald Trump made history last night, not only as the second president ever elected to nonsequential terms in the White House. He is also the first American president ever elected with a felony conviction.
Besides the felony conviction, Mr. Trump is facing criminal felony charges in three other cases: two related to his failed efforts to overturn the 2020 election result, and one related to his alleged unlawful retention of classified documents after leaving office four years ago.
Why We Wrote This
Donald Trump, newly elected president, has a bucket of legal problems – and a Justice Department soon at his disposal. He may reshape American justice.
With his reelection on Tuesday, those legal troubles are now likely to disappear, experts say. What could emerge in their place is legal trouble for Mr. Trump’s political opponents. And after a campaign in which Mr. Trump repeatedly claimed that he would pursue retribution against political opponents, some worry that his administration’s priorities could have troubling implications for the rule of law.
“For all intents and purposes, his criminal prosecutions are over,” says Jeffrey Cohen, a former federal prosecutor and an associate professor at Boston College Law School. “There’s some cleanup to do, but he’s going to effectively avoid any kind of accountability.’’
President-elect Donald Trump made history on election night. He is not only the second president ever elected to nonsequential terms in the White House but also the first American president ever elected with a felony conviction.
Legal troubles hung over Mr. Trump the entire campaign, but voters did not seem to mind. Besides the felony conviction, he is facing criminal charges in three other cases: two related to his failed efforts to overturn the 2020 election result and one related to his alleged unlawful retention of classified documents after leaving office four years ago.
With his reelection last night, experts say those legal troubles are likely to disappear. Some observers worry that what could emerge in their place is legal trouble for Mr. Trump’s political opponents.
Why We Wrote This
Donald Trump, newly elected president, has a bucket of legal problems – and a Justice Department soon at his disposal. He may reshape American justice.
“For all intents and purposes, his criminal prosecutions are over,” says Jeffrey Cohen, a former federal prosecutor and an associate professor at Boston College Law School. “There’s some cleanup to do, but he’s going to effectively avoid any kind of accountability.”
And after a campaign in which Mr. Trump repeatedly claimed that he would pursue retribution against critics and opponents, some observers worry that his administration’s new priorities could have troubling implications for the rule of law.
The Manhattan case
Of the four criminal cases against the former and now future president, only one has gone to trial. In May, a jury in Manhattan convicted Mr. Trump on 34 felony counts of falsifying business records to hide hush money payments to an adult film star during the 2016 presidential campaign.
His sentencing is scheduled for Nov. 26, after being postponed until after the election by New York state Judge Juan Merchan, who is overseeing the case. Mr. Trump’s lawyers are expected to ask for another delay, The Washington Post reported on Wednesday. The president-elect faces a maximum of four years in jail, but whatever the sentence is, it’s unlikely that Mr. Trump will ever serve it, experts say. He is appealing the Manhattan conviction, and the sentence will be stayed pending those appeals. It’s likely that, once he becomes president in January 2025, the appeals will be stayed until the end of his term.
The Georgia case
Similarly, in Fulton County, Georgia, Mr. Trump is one of nine defendants facing criminal charges over an alleged conspiracy to overturn the result of the 2020 presidential election there. The case has been delayed as Georgia courts weigh whether the lead prosecutor, Fulton County District Attorney Fani Willis, should be disqualified due to a conflict of interest.
Fulton County District Attorney Fani Willis speaks during a news conference, Aug. 14, 2023, in Atlanta. Donald Trump faces criminal charges over an alleged conspiracy to overturn the the 2020 presidential election results there. The case has stalled as Georgia courts weigh whether Ms. Willis should be disqualified due to a conflict of interest.
A hearing on that question is scheduled for December, but if the case proceeds, it’s possible it could continue against the other defendants. Longstanding DOJ policy holds that a sitting president cannot be prosecuted, but Fulton County prosecutors could choose to litigate that issue.
“I’m not sure if states would have [that] right,” says Barbara McQuade, a former federal prosecutor and a professor at the University of Michigan Law School. “If it goes before the U.S. Supreme Court as currently constituted, which seems to have a pretty strong view of executive power, I expect it will come out in [the Trump Justice Department’s] favor.”
The federal cases
What is almost certain, experts say, is that two federal criminal cases against Mr. Trump will be discontinued.
One case being heard in Washington, D.C., involves his efforts to overturn the 2020 election. Another, being heard in Florida, involves his alleged unlawful retention of classified documents after his term ended. Both cases are led by Jack Smith, a special counsel appointed by Attorney General Merrick Garland.
Two weeks ago, Mr. Trump said he would fire Mr. Smith “within two seconds” of taking office. Reports emerged Wednesday that Department of Justice officials are exploring how to wind down the federal criminal cases against him in light of the policy that a sitting president cannot be prosecuted.
Both cases have undergone over a year of pretrial litigation. If those cases were to be ongoing when he enters office, experts say, Mr. Trump wouldn’t be able to end them himself. But he might appoint an attorney general who could.
The Washington case recently returned to district court Judge Tanya Chutkan following the Supreme Court ruling that former presidents have broad immunity from criminal prosecution. District court Judge Aileen Cannon dismissed the classified documents case in Florida in July. That decision is under appeal, but the new attorney general could order prosecutors to drop it. (Two weeks ago, ABC News reported that Judge Cannon, a Trump appointee, is on a short list of potential attorney general candidates.)
J. Scott Applewhite/AP/File
Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Aug. 1, 2023, at an office of the Department of Justice in Washington.
An incoming president often sets a new course for the Department of Justice, says Professor Cohen.
“The DOJ can change its priorities with a new administration,” he adds. “So the DOJ can absolutely stop prosecuting those cases.”
The Trump 47 Justice Department
Whatever they do, Mr. Trump and his allies have made clear that the Justice Department will be central to much of it.
“When we get in there, we’re going to fire the people responsible for the corruption of our Department of Justice,” said Trump running mate JD Vance at a rally last month.
That includes Mr. Garland, he added, whom he described as “one of the most corrupt AGs we’ve ever had.”
Indeed, at that rally, Senator Vance said the new attorney general would be a more important administration member than him – second only to Mr. Trump.
“You need an attorney general who believes in true equal justice under law,” he said.
But as Mr. Trump has repeatedly claimed that he will go after his critics and political opponents, some observers worry about how equal that justice could be.
He has, for example, called for investigations into the 2024 Democratic presidential nominee, Vice President Kamala Harris, and President Joe Biden, as well as former President Barack Obama and former U.S. Rep. Liz Cheney, a Republican who campaigned against him this year, according to Reuters.
He has also said he would task his DOJ with investigating progressive prosecutor offices, arrest protesters who engage in vandalism, and jail people who burn the American flag. (The Supreme Court ruled in 1989 that the Constitution protects flag burning.)
“There’s a worry that he could follow through on some of these threats, and he could really shake the foundation of the Department of Justice,” says Professor McQuade. “I hope we have enough checks in the system to prevent that from happening, either through career prosecutors, or juries or courts.”
