Why the election may determine what happens with Trump's criminal sentencing
WASHINGTON – Former President Donald Trump is involved in four criminal cases, but the most important verdict in his legal future may be delivered on Election Day on Tuesday. If he wins, all his charges could be dropped or postponed for at least four years. If he loses, he could face swift sentencing in one case and trials in the other three.
If Trump were not a candidate for president, his legal trouble would be unavoidable. He is scheduled to be sentenced Nov. 26 on 34 felony counts in his New York hush money case. Two trials loom ? one in federal court in Washington, D.C., and one in Georgia state court ? on charges he tried to steal the 2020 election. In Florida, a Trump-appointed federal judge dismissed charges that Trump mishandled classified documents after leaving the White House. But that reprieve could be temporary; prosecutors have appealed the decision.
Being elected president would give Trump an out because legal experts say serious action in the New York and Georgia cases would likely be postponed until after he serves his four-year term. Trump has said he would fire Justice Department special counsel Jack Smith in the two federal cases; he also could try to pardon himself.
But if Trump loses, all of his cases can move forward ? assuming he doesn't succeed in his various legal gambits to delay and derail them, including his argument that he is protected by the Supreme Court's ruling in July creating expansive presidential immunity from criminal charges.
A USA TODAY/Suffolk University Poll in October found a majority of 58% of likely voters think it would be “wrong” for Trump to direct the Justice Department to dismiss the federal charges against him. A similar majority of 56% of respondents said prosecutors should continue to pursue the criminal cases if he loses the election.
A Trump campaign spokesperson didn't respond to a request for comment.
Here’s where the cases stand:
Sentencing in New York hush money case looms Nov. 26
Trump was convicted of falsifying business records to hide a $130,000 payment to porn actress Stormy Daniels to silence her about an alleged sexual encounter before the 2016 election.
Judge Juan Merchan will decide Nov. 12 whether Trump is immune from the charges under the Supreme Court presidential immunity ruling. Trump has argued some evidence in the case should be thrown out, along with the conviction, because of the high court’s decision.
If Trump isn’t shielded from the conviction, Merchan set sentencing for Nov. 26.
But a Trump victory could mean Merchan would postpone the sentencing or the punishment until after his administration is over. And even if sentencing went forward, a sentence that would significantly interfere with Trump's presidential responsibilities, such as a prison term, probably couldn't be implemented, according to legal experts.
A 2000 Justice Department memo that lays out federal policy argues it would be unconstitutional to imprison a sitting president because it would "preclude the executive branch from performing its constitutionally assigned functions."
"There's a sense out there that they would follow the norm of the feds and therefore delay the sentencing in the New York case until after he finished his presidency," Robert Weisberg, a Stanford law professor who teaches criminal law and procedure, told USA TODAY.
An election loss would leave Merchan to sentence the real estate mogul to anything from nothing at all to several years in prison.
Trump could direct Justice Department to abandon federal cases
Trump has said he would fire the federal prosecutor, Smith, and possibly even jail him.
“It’s so easy ? I would fire him within two seconds,” Trump told radio host Hugh Hewitt on Oct. 24.
Trump opponents would view that as an attack on the Justice Department's historic independence. Rep. Adam Schiff, a California Democrat, introduced a bill to prevent a president from dismissing a criminal prosecution against himself, but it is unlikely to pass the Republican-majority House of Representatives.
"The rule of law is a core foundation of our nation, Schiff said in a statement. "No one, not even the president, is above it."
Trump has said Smith treated him unfairly.
“They ought to throw Deranged Jack Smith and his Thug Prosecutors in jail, with Meritless Garland and Trump Hating Lisa Monaco,” Trump said in a post on Truth Social in July 2023, referring to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco. “They have totally Weaponized the Department of Injustice.”
Garland has repeatedly denied that the prosecutions were politically motivated. “Justice Department prosecutors are nonpartisan," he said. "They don't allow partisan considerations to play any role in their determinations.”
Trump contends he could pardon himself
Article 2 of the Constitution states the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The power applies to federal cases.
Trump has said he could pardon himself, but that remains a subject for legal debate.
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself,” Trump said in a 2018 post on X, formerly Twitter.
Where do federal charges stand alleging Trump tried to steal 2020 election?
U.S. District Judge Tanya Chutkan is weighing whether to dismiss any of the charges against Trump accusing him of conspiring to steal the 2020 election.
The Supreme Court ruled that former presidents are shielded from prosecution for official acts but vulnerable to charges for private acts while in office.
Trump and his lawyers contend the entire case should be thrown out based on presidential immunity. But Smith has argued that Trump was acting for his private gain rather than the public duty of serving in office when he tried to reverse his defeat in 2020.
Classified documents case already dismissed, but appeal could be abandoned
Besides firing Smith, Trump could direct the Justice Department to abandon the appeal of the dismissal of his other federal case, which charged him with hoarding classified documents at Mar-a-Lago after leaving the White House.
U.S. District Judge Aileen Cannon dismissed the charges by ruling that Smith’s appointment was illegitimate because the post was powerful enough that it should have required congressional authorization or Senate confirmation, as with U.S. attorneys.
Smith has asked the 11th U.S. Circuit Court of Appeals to overturn her decision. He cited federal laws authorizing the attorney general to appoint officials and numerous court decisions upholding special counsel appointments for decades.
The charges accuse Trump of unlawful retention of more than 100 national security documents for a year and a half after leaving the White House. Trump, who has pleaded not guilty, has argued repeatedly that he could take records with him after leaving the White House and that he declassified them despite the lack of documentation for his assertion.
Georgia charges loom even if federal charges are dismissed
Trump’s Georgia trial on election racketeering charges could be postponed under the Constitution's supremacy clause if he wins back the White House.
If Trump loses the election, the Georgia Court of Appeals is scheduled to hear arguments Dec. 5 about whether to remove Fulton County District Attorney Fani Willis from the case.
Trump has argued Willis should be removed and the charges dropped because her romantic relationship with another prosecutor, Nathan Wade, spurred her to pursue the case.
The charges accuse Trump of conspiracy for urging state lawmakers to replace the state’s presidential electors with Republicans despite Democrat Joe Biden winning the state. Trump also is charged with soliciting a public official to violate his oath of office for asking Georgia Secretary of State Brad Raffensperger to “find” him enough votes to win.
Trump has pleaded not guilty.
This article originally appeared on USA TODAY: How the election could shape Trump's legal fate