Donald Trump is at a pivotal point in his personal history. For him, the result of the election will be one of a series of criminal prosecutions likely to result in imprisonment or some legal interference that can be largely or completely eliminated.
A victory for Kamala Harris next week would leave Trump with no new cards to play against the juggernaut of pending criminal cases against him. We can expect turnover in the highest ranks of the Department of Justice, up to and including Atty. General Merrick Garland. But the new leader will almost certainly retain special counsel Jack Smith, who has earned high marks for his aggressive pursuit of Trump’s federal crimes.
That will allow Smith to continue pursuing two prosecutions brought against the former president: one for his role in trying to overthrow the 2020 election, culminating with the January 6, 2021, attack on the Capitol; others for purloining government documents and obstructing the authorities’ efforts to recover from the Florida estate, Mar-a-Lago.
As a matter of legal rights, the latter is the strongest criminal case against Trump. The evidence is overwhelming that Trump got rid of unauthorized documents as a former president and then engaged in a nearly two-year stonewalling of legitimate federal government efforts to get them back. The alleged obstruction included lying about compliance with federal subpoenas and ordering conspirators to withhold documents they knew the government wanted. And for all we know, reckless and selfish handling of sensitive information about national security could put US assets at great risk.
What makes the case even stronger is that anyone who commits a similar act will likely face serious charges; Indeed, the Department of Justice regularly prosecutes people for mishandling a small fraction of misappropriated Trump material. So no one can legitimately argue that they were chosen for political purposes or that the case pushed the legal envelope in any way.
However, Trump was able to avoid justice in the case because of a series of partisan rulings by US District Judge Aileen Cannon, who ultimately ordered the case dismissed because Smith’s appointment lacked proper congressional authorization. The ruling is now before the 11th Circuit US Court of Appeals, which is likely to overturn it and could order Cannon’s resignation. And while a determined district court judge may find a variety of ways to dismiss the charges, Cannon will face increased scrutiny and no recourse if his patron loses his bid to return to the White House.
The case, in short, must proceed to conviction. And the possible sentence under federal guidelines (which the courts can impose) appears to be nearly 20 years.
If the document case is the most open and closed against Trump, the case of January 6 is the most important because it is the essence of the corruption as a president. But Trump got another big break here, not from the district court — Tanya Chutkan is the unscrupulous federal judge who has moved the case quickly — but from the U.S. Supreme Court. A conservative justice threw a monkey wrench into the case with an opinion granting the president broad immunity from prosecution, which would last at least another year.
Still, when the dust settles, the evidence is more than strong enough to lead to a conviction on the core charges that are likely to remain. And under the law that was imposed on the ground soldiers on January 6, the most guilty, Trump will also spend many years in prison in this case.
That leaves two state cases against the former president. In New York, Trump will be sentenced in less than a month for his conviction on 34 felony counts of falsifying business records to cover hush money payments to adult film actor Stormy Daniels. And in Georgia, the racketeering case stemming from January 6 plot in a sort of deep freeze as the state court tries to sort out what Fulton County Dist. Atty. Fani Willis and her office should resign for ethical reasons.
The future of the Georgia case is uncertain under any scenario. But if Trump loses the election, he will face punishment in Manhattan. It is likely to serve little if any time detained as a result, but probably can count on long term probation, which itself entails significant deprivation of freedom.
Finally, the possibility remains that Trump will appear as a defendant in another state case involving a conspiracy to overturn an election by casting fraudulent voters. His involvement in the scheme is a matter of record.
Add it all together, and the bottom line is that Trump will be forced to endure one criminal trial after another and the possibility of a prison sentence interrupted only for the process in other cases.
But what if Trump emerges as the winner next week? The difference alone will be astounding. Taking back the White House would be a free pass for a crime-free presidency and post-presidency.
First, as head of the executive branch, Trump can and has only ordered the Justice Department to drop two pending federal cases. Indeed, Trump announced last week that he would fire the special counsel”in two seconds” took office and pointed to the Supreme Court’s immunity ruling as a guarantee of its power. That would bring all of Smith’s work to a grinding halt.
As for New York, even as president, Trump has no formal authority to rule Manhattan Dist. Atty. Alvin Bragg to stand down. But he may argue in federal court that the state can’t pursue criminal cases — much less imprison — a sitting president. And it’s likely that the Supreme Court will and should find that principle in the Constitution: The federal government can’t do much if the states have that power.
In that case, any sentence in New York, including a trial, would take place only after Trump leaves office, at which point it may be a very different state. For starters, Trump has signaling his intention to bring federal charges against Bragg.
Finally, a Trump presidency may see him subject to additional state prosecutions. Indeed, it may end the prosecution.
Trump’s entire campaign to regain the presidency can be seen as a strange gamble to evade responsibility for some very serious and real crimes. If he wins, he will take it as a popular verdict that he is above the law, even within the Constitution. And as a practical matter, he would be right.
Harry Litman is the host of the “Talking Feds” podcast. and”Saying San Diego” speaker series. @harrylitman
