What could happen with the pending state cases against Trump if he wins.
What could happen with the pending state cases against Trump if he wins
Author’s Note: This is part two of a three-part series in which we try playing out what happens to lawfare — the criminal and civil cases against former president Donald Trump brought by the Biden-Harris Justice Department and state Democratic prosecutors, as well as other legal gambits by which Democrats may continue trying to forestall or derail a Trump presidency — in the event that Trump is elected president in November. Here is part one.
I n yesterday’s first part of this series, we looked at the pandemonium that could attend the January 6 joint session of Congress — the proceeding at which state-certified electoral votes are counted and the presidential-election result is ratified — if Donald Trump were to defeat Kamala Harris in the presidential election a little over a week from now. Today, we’ll look at the pending state lawfare cases, as well as Biden-Harris DOJ special counsel Jack Smith’s Florida case against Trump.
The New York State Prosecution
Shortly after Election Day, there is scheduled to be action in the prosecution of Trump brought by Alvin Bragg, Manhattan’s elected progressive-Democratic district attorney. To recap what I’ve previously covered (see here and here), after Trump was found guilty on 34 counts of business-records falsification, the Supreme Court rendered its decision in Trump v. United States, holding that presidents enjoy at least presumptive immunity from prosecution for official acts (and complete immunity for core executive functions). This created a problem for Bragg and Judge Juan Merchan: Even though it was apparent during Trump’s Manhattan trial that the justices might rule in Trump’s favor on immunity in the federal case, Merchan allowed Bragg’s prosecutors to introduce evidence of Trump’s official acts (evidence I believe they did not need in order to prove their case, such as it was). Ergo, Trump added an immunity claim to his post-trial motions seeking to have the guilty verdicts vacated. Even if Merchan rules against Trump (as he invariably has throughout the case), immunity rulings can be appealed immediately — which could allow Trump to continue delaying the imposition of sentence.
As things now stand, Merchan says he will rule on Trump’s immunity claim on November 12 and — assuming he denies it — impose sentence on November 26. This is no sure thing. After Merchan denies the immunity claim, Trump will immediately appeal, and there’s a good chance the appellate court will put the sentencing on hold until Trump’s immunity appeal runs its course, which could take a long time (particularly if it ends up in the Supreme Court after the state’s two levels of appeals courts consider it).
On the other hand, the state appellate courts could decline to stay the sentencing. They could rationalize that, unlike the usual immunity claim (which is made pre-trial), Trump has already been tried, so they might as well let Merchan impose sentence; then, the immunity claim can go up on appeal with all the other claims Trump wants to posit in arguing for reversal. Personally, I believe the immunity should be fully litigated before sentencing (or anything else) happens in the case; but I could certainly see the state appeals courts preferring, at this point, not to bifurcate the appeal — and if that’s how they come out, I doubt the federal courts would intervene.
If there is no stay, Merchan could sentence Trump on or close to the November 26 date currently set. It would certainly be explosive for a state judge to sentence a president-elect to a term of incarceration. I would hope Merchan, despite being an activist Democrat, would resist that urge — Bragg’s selective prosecution was unabashedly partisan and preposterous, the guilty verdicts are likely to be reversed on appeal, Trump is a first-time offender, and the “crimes” were nonviolent (in a state where defendants with criminal records are usually spared imprisonment over more serious misconduct). But even if the judge metes out a prison term, Trump would get bail pending appeal.
I would be surprised if a President-elect Trump got any help in his New York case from the Biden-Harris administration. But assuming for argument’s sake that the Justice Department elevated its institutional interest in a properly functioning executive branch over its partisan interest in anti-Trump lawfare, it would seek to suspend the state-court criminal proceedings against Trump until he is out of office — taking whatever action is appropriate in state and federal court toward that end. Under the Constitution’s supremacy clause (art. VI, cl. 2), the states are barred from taking action that would undermine the proper functioning of the federal government. Invoking the clause here would not put Trump above the law; he’d still face the state proceedings, just after his presidency ends.
Assuming no intervention by DOJ during the Biden-Harris administration, Trump would have to wait until he assumed power to direct DOJ to seek a stay of the state criminal proceedings.
Trump’s other delay strategy has been to try, for a second time, to get the Bragg case removed to federal court. He is ill-positioned to do this because he failed to appeal when Judge Alvin Hellerstein, of federal district court in Manhattan, ruled against him the first time around, back in 2023. Hellerstein ruled against Trump’s latest removal effort, following the Supreme Court’s immunity ruling. Trump has appealed to the Second Circuit, where a decision is pending. (The circuit already declined to take up the appeal on an expedited basis; I would not be optimistic if I were Team Trump.)
Of course, Governor Kathy Hochul could end this mess by pardoning Trump. But she’s another Democrat — an unpopular one who fears New York progressives and wouldn’t dream of crossing them for Trump’s benefit.
The New York State Civil Fraud Judgment
We needn’t tarry long on New York attorney general Letitia James’s civil fraud case against Trump, in which she persuaded Judge Arthur Engoron — an elected progressive Democrat — to impose what amounts to about half a billion dollars in financial penalties, and other sanctions. That case is currently on appeal before the appellate division (the intermediate appeals court). As I’ve related, the oral argument went well for Trump. Such proceedings are not always an accurate gauge of how the court will rule, but Trump should be optimistic about winning a significant reduction of the penalty, if not a complete reversal.
Trump will not have to pay any of the penalty unless and until ordered to do so at the end of his appeals, which could take a couple of years. This is litigation that involves only private acts (specifically, the conducting of Trump Organization business in years past). I believe the appellate process will proceed while Trump is president — he is not required to be present at proceedings, which will be handled by his private lawyers.
The Georgia State Prosecution
There also isn’t much to say about the state RICO prosecution, based on 2020 election interference in Georgia, brought against Trump by Fulton County district attorney Fani Willis. She is embroiled in disqualification litigation: Nathan Wade, Willis’s then-paramour, whom she recruited and paid lavishly, has already had to recuse; the trial judge’s refusal to disqualify Willis is being appealed by the defendants. The appellate court will not even hear arguments in the case until December; no decision is expected until sometime next year.
When the disqualification issue is resolved, if there is still a case, Trump will have immunity claims to make, which will tie up the case against him for months, if not years, in pre-trial litigation and appeals. I believe this case could collapse: If Willis is disqualified, as she should be, it would be assigned to other state prosecutors, who would decide if it is legally sound and worth pursuing. In the interim, the Trump DOJ could seek a stay on supremacy-clause grounds until he is out of office.
The Federal Cases
Lawfare’s crown jewels are the two criminal cases brought by Biden-Harris DOJ special counsel Jack Smith — the so-called J6 case in Washington, D.C., in which Trump is indicted on three counts of conspiring to corruptly undo the 2020 election (the Supreme Court’s immunity ruling required dismissal of a fourth count); and the Mar-a-Lago documents case in Florida, in which Trump is charged in over three dozen counts of mishandling classified intelligence and obstruction of justice. We look at the Florida case below, and we’ll explore the more complicated Washington case in the final installment of this three-part series.
Florida
Judge Aileen Cannon (a Trump appointee) has dismissed the Florida indictment, ruling (correctly in my view) that Smith’s special-counsel appointment violated the Constitution’s appointments clause (see here and here). The Biden-Harris DOJ is appealing that decision to the Eleventh Circuit. Briefs are still being filed in the case, and oral argument will not take place until sometime next year. There would then be no timetable for a decision by a three-judge panel — it could take many months.
Presumably, Trump’s DOJ would drop the appeal. That would end the case — there could be some complications, but we’ll get to those in connection with the J6 case, which is more fraught.
As I have detailed a number of times (see, e.g., here), Biden-Harris attorney general Merrick Garland could easily have avoided dismissal of the Florida case. Had he simply transferred Smith and his staff to work under the direction of the Biden-appointed, Senate-confirmed U.S. attorney for the Southern District of Florida (SD-FL), the appointments-clause issue would have disappeared.
Garland could still do that. Again, there is a lot of time between Election Day and Inauguration Day. If the case were transferred to the SD-FL U.S. attorney, it could be quickly revived — or DOJ could rapidly reindict from scratch, then try to get the new indictment assigned to a different judge on the theory that it’s no longer the same case Cannon dismissed. (I doubt the Florida federal district court would tolerate such sleight of hand.)
Such a revival of the Florida case would cause problems for Trump. As we shall see in part three, it is more complicated to drop a pending indictment than an appeal in a criminal case that the government has already lost.
Nevertheless, Smith and DOJ have already filed a lengthy brief appealing Cannon’s ruling, and amici are lining up on both sides of the case. That being so, it seems unlikely that Garland would change course, accede to Cannon’s ruling, and try to revive the prosecution in the lower court.
(Note: While the J6 case presents the same appointments-clause issue, it is not affected by Judge Cannon’s ruling. Federal prosecutions in Washington are controlled by the law of the D.C. Circuit (not the Eleventh Circuit); the D.C. Circuit has already decided the appointments-clause issue in the government’s favor — in a case involving special counsel Robert Mueller’s Russia-collusion probe. If (a) Harris wins the election, (b) the federal cases proceed, and (c) the Eleventh Circuit affirms Judge Cannon, it’s possible that (d) the Supreme Court would have to resolve the divide between the D.C. Circuit and the Eleventh Circuit over the appointments-clause issue.)
Up next: the J6 case.