Nov. 11 (UPI) — Donald Trump’s presidential election win grants him the power to free himself from his federal legal troubles, while also muddying the circumstances surrounding his state cases.
Trump will have the authority to dismiss the federal investigators working the cases against him and put those cases to an end. Meanwhile, cases at the state level may also remain up in the air, David S. Weinstein, an attorney with Jones Walker in Miami and former federal prosecutor in the Southern District of Florida, tells UPI.
The federal cases include the classified documents case in Florida and the election interference and Jan. 6 Capitol riot case in Washington.
On Friday, the first domino fell when a federal judge granted special counsel Jack Smith’s request to pause the case in Washington. Smith requested a deadline of Dec. 2 to file a status report or inform the court of the result of its deliberations, due to the result of the election.
U.S. District Judge Tanya Chutkan has kept the case against Trump on hold since February as the U.S. Supreme Court mulled his claim of presidential immunity.
Trump faces federal charges in that case for his alleged role in a scheme to overturn the results of the 2020 election and inciting the riot at the U.S. Capitol on Jan. 6, 2021. He argued that he is shielded from prosecution because he has presidential immunity.
The Supreme Court affirmed Trump’s claim to some extent, ruling that he is immune from prosecution for actions that are considered part of his core constitutional powers as president. He also enjoys the presumption of immunity when performing official acts.
Weinstein explains that most of what Trump did as president, and what he will do as president in his next term, will be defensible as official acts. The onus will be on prosecutors to prove that Trump’s actions are not official acts.
Trump has motioned for dismissal of the case.
“Ultimately either special prosecutor Jack Smith or the new attorney general who is going to come in in January next year could move to dismiss it,” Weinstein said. “It will be up to Chutkan to decide to accept their request for dismissal. We’re not going to see much moving forward on that, especially with an incoming president that needs to coordinate with the Justice Department coming in.”
The classified documents case is in the court of appeals after U.S. District Court Judge Aileen Cannon dismissed the case in July. Cannon, a Trump-appointed judge, dismissed on the grounds that special counsel Jack Smith’s appointment to prosecute the case violated the Appointments Clause of the Constitution.
The Justice Department quickly filed an appeal the same day, arguing that the attorney general’s authority to appoint a special counsel has long been recognized.
“The long history of attorney general appointments of special counsels confirms the lawfulness of the Special Counsel’s appointment,” the appeal reads. “From before the creation of the Department of Justice until the modern day, attorneys general have repeatedly appointed special and independent counsels to handle federal investigations, including the prosecution of Jefferson Davis, alleged corruption in federal agencies — Watergate and beyond.”
The current administration dismissing these cases before Trump is sworn in allows Smith, Attorney General Merrick Garland and the Biden Administration to write the final chapter on Trump’s prosecution.
“If they’re going to wind it down they can do it on their own terms if they do it now,” Weinstein said. “They can prepare whatever closeout memos, choose how it ends and can write the last chapter in this. If they let it go into the next administration, we’ve all been told how it’s going to end.”
“The way it is going to end then is Jack Smith is going to be fired as soon as the incoming president takes office,” he continued. “Merrick Garland will be fired. The new attorney general will step in and the new Department of Justice and the new executive branch will control the narrative. They will be able to say these cases were improperly brought based on insufficient evidence.”
Trump is scheduled to be sentenced in the hush money case against him in New York on Nov. 26. New York State Supreme Court justice Juan Merchan said he will decide by Tuesday if the sentencing will move forward, given the U.S. Supreme Court’s presidential immunity ruling in July.
Sentencing was originally slated for Sept. 18. Merchan moved it until after the election.
“While the former and future president is facing jail time, we’re not talking about years. We’re talking about months or weeks,” Weinstein said. “If anything it would be a long probationary sentence, house arrest or home confinement. The sentence is likely to be suspended as that case winds its way through the appellate court system.”
Trump will still have to appear in a New York court at least twice, unless Merchan decides to dismiss the case. One appearance will be to hear a motion to dismiss the case and the other, for sentencing.
“They may ask to push sentencing off until sometime post inauguration. That’s up to judge Merchan,” Weinstein said.
As for the question of whether the next sitting president could be under probation, Weinstein said “The short answer is yes.”
In Georgia, the election subversion case against Trump is on appeal as the president-elect has sought to remove District Attorney Fani Willis from the case. Trump alleged that Willis personally benefited from his prosecution through her relationship with prosecutor Nathan Wade, with whom she was in a relationship with. Judge Scott McAfee ruled that there is no conflict of interest after Willis dismissed Wade.
Trump has appealed this decision.
“If it’s not taken up to the federal system, it will get put on pause,” Weinstein said. “Despite the fact that it’s a state court case, they’re not going to want to proceed to criminal trial against a sitting president of the United States. It gives a bad look to the rest of the world that our leader is facing criminal charges. Perhaps four years from now we will be having this same discussion again.”
Trump’s civil penalty in the defamation case brought against him by author E. Jean Carroll is also on appeal. The president-elect posted a $91.6 million bond, covering the $83.3 million defamation judgment, in March.
Trump was found liable for defaming Carroll publicly when denying he sexually assaulted her in the 1990s. Trump repeatedly made comments about Carroll at rallies and on social media. He was also found liable for sexually abusing Carroll in a department store in New York City. He has denied the allegations.
This is a case that Trump has very little control over, Weinstein said.
“Somehow they can try to argue that presidential immunity is put into that but that’s never going to apply considering the facts that came out in that,” Weinstein said. “Also it’s a civil case. Many of those actions took place before he was the president.”
The defaming comments also continued after Trump left office.
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