This will be Slate’s final edition of Keeping Up With the Trump Trials. You can read our old coverage of Trump’s legal entanglements here.
Donald Trump has been reelected, and he’s set to become the 47th president of the United States in January. Now all of the criminal proceedings against him are winding down, since Department of Justice policy prohibits the prosecution of a sitting president. Special counsel Jack Smith filed a motion Friday requesting that all deadlines in his Jan. 6 case be vacated while he decides his next move, and Judge Tanya Chutkan has granted it. Meanwhile, the fate of Trump’s sentencing in the New York hush money trial remains uncertain.
In 2023 Trump racked up over 80 felony charges across four criminal indictments: Manhattan District Attorney Alvin Bragg’s hush money case, Smith’s classified-documents and Jan. 6 cases, and Fulton County District Attorney Fani Willis’ election-interference case. From the get go, Trump’s defense attorneys aggressively engaged in delay tactics to force prosecutors to slow their investigations and prevent Trump from facing a jury trial as he ran as the Republican nominee for president for the third time.
These delay tactics managed to slow both federal cases and Willis’ Georgia case, which became mired in scandal after the defense exposed a romantic relationship Willis had had with one of her prosecutors. The hush money case, however, did go to trial earlier this year, and Trump was convicted of 34 felony counts. But his biggest legal win came from the Supreme Court, when it ruled that U.S. presidents are immune from criminal prosecution for certain “official” acts committed while in office.
I spoke with Dennis Fan, a former federal prosecutor and a professor at Columbia Law, who explained how prosecutors could navigate the end of their cases while Trump prepares to become the next commander in chief.
The Federal Jan. 6 Case
At the end of 2023, Judge Tanya Chutkan paused Jack Smith’s election interference case while the Supreme Court considered Trump’s presidential-immunity appeal—and it remained paused for two months after the court released its decision, while Smith considered how to amend the charges in his indictment. On Friday, Smith requested that Chutkan vacate the remaining pretrial deadlines “to afford the Government time to assess this unprecedented circumstance and determine the appropriate course going forward consistent with Department of Justice policy.” Chutkan almost immediately granted Smith’s request.
Smith will officially announce what he plans to do with this case by Dec. 2, though DOJ policy states that sitting presidents cannot be prosecuted, since it “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” This means that Smith may decide to drop his case against Trump, and even step down as special counsel before Trump takes office.
Technically, the special counsel could keep the case going through the end of this year, since “that authority doesn’t disappear once there’s a change in administration,” Fan said, but Smith’s latest motion indicates he is likely not considering this route. Special counsels typically create a report toward the end of their investigation that sums up their findings and their recommendations of what to do next. Special counsel Robert Mueller famously did this in 2019, after investigating the Trump campaign’s alleged links to Russian attempts to interfere in the 2016 presidential election. (Former Attorney General Bill Barr chose not to pursue charges.) Smith could hand his report to the next attorney general, who would then decide what to do about the special counsel’s open case—and Trump’s next AG would almost certainly choose to dismiss it.
The Federal Classified-Documents Case
Florida-based U.S. District Court Judge Aileen Cannon dismissed this case in July, ruling that Smith’s appointment as special counsel was unlawful and that this meant he did not have the authority to prosecute Trump. Her decision came after she spent a year issuing sympathetic rulings that favored Trump.
Smith appealed Cannon’s decision to dismiss, and that appeal is currently being considered by the 11th Circuit Court of Appeals. Smith could continue pursuing this appeal through the end of the year—but the court may very well not move forward on it, given that Trump has been elected president again and in a few short months it’s almost certain that Smith will no longer be a special counsel. “If I were the 11th Circuit, I’d hold off on this one,” Fan said.
Smith could also cut his losses and formally rescind his appeal.
The New York Hush Money Case
This is the only criminal case against Trump that has gone to trial. In May, a jury found Trump guilty of 34 felony counts related to hush money payments he made in the lead-up to the 2016 election. New York Supreme Court Justice Juan Merchan initially scheduled Trump’s sentencing in July, then delayed it twice, most recently until Nov. 26, to avoid the perception that he was interfering with the election.
Now Merchan has a big decision to make. Since the justice delayed sentencing once for the election, Fan believes that “the actual election of Donald Trump to the presidency would be a greater reason for him to delay the sentencing further, and I doubt Trump has any objection to that.” Merchan could push off Trump’s sentencing another four years, once he’s out of the White House and a private citizen again. (As president, Trump will not be able to vacate his felony conviction since it’s from a state court.)
Technically, Merchan could sentence Trump on Nov. 26 as scheduled, though Fan thinks that this is highly unlikely. “You’re not going to say, ‘Hey, in the next week, go complete your community service and do 500 hours between Christmas and Jan. 20,’ ” Fan said. Trump’s attorneys would also undoubtedly argue against the existing sentencing, and it’s likely going to create drawn-out litigation that takes time to resolve.
The Georgia Election-Interference Case
This case, spearheaded by Fulton County District Attorney Fani Willis, has been tied up with drama and delays since the beginning of 2024. Earlier this year, a defendant in her case accused Willis of misconduct related to her romantic relationship with special prosecutor Nathan Wade, whom she had hired to work on her investigation. During a dramatic evidentiary hearing, Willis admitted to having had a romantic relationship with Wade after he was hired but denied any misconduct. A judge ultimately ruled that she could stay on the election-interference case, so long as Wade resigned, which he did. (Willis on Tuesday won her own reelection fight.)
However, Trump’s defense attorney appealed the judge’s decision, and for the past several months, the case has been paused until a Georgia appeals court makes a final ruling on Willis’ status in this case—oral arguments are scheduled for Dec. 5, and a final decision is expected in 2025. If Willis is allowed to remain on her case, she may be unable to prosecute Trump for the next four years, but she could still pursue charges against the 18 other co-defendants.
If the appeals court rules that Willis cannot remain on her case, it could be reassigned to another prosecutor, who would have to decide whether to keep it alive or drop the entire thing.
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