Donald Trump’s victory over Kamala Harris immediately spurred questions about the viability of the various criminal cases against him, including whether he will be sentenced as planned this month – and whether he could pardon himself.
Trump, who was found guilty of 34 felony counts this May and will become the first US president with a criminal record, also faces charges in other state and federal courts for his apparent efforts to disrupt the electoral process and hoard classified documents.
The president-elect also faces hundreds of millions of penalties in civil cases, for sexual abuse, defamation and fraud.
Trump’s delay-based legal strategy, which has proved highly successful for him, could mean he avoids punishment and jail in his New York City criminal hush-money case.
After the trial and guilty verdict, Trump was initially scheduled to be sentenced in July, then in September. Trump’s lawyers then asked the judge, Juan Merchan, for a postponement this summer so he could weigh the US supreme court decision that granted broad immunity on former presidents for official acts in office.
The decision held that unofficial acts carry no immunity, and his New York trial was largely focused on his 2016 efforts to bury negative stories about an alleged sexual encounter with an adult film star, which happened before his time in the White House.
Some of the prosecution evidence at trial, however, involved personal actions Trump took during his presidency, and in September Merchan decided to delay Trump’s scheduled sentencing that month until 26 November – after the election. He said he agreed to push back the proceeding “to avoid any appearance – however unwarranted – that the proceeding has been affected by or seeks to affect the approaching presidential election in which the defendant is a candidate”.
Merchan also said he would issue his presidential immunity decision on 12 November, which could well render the sentencing moot should he rule in favor of Trump.
US presidents have the power to pardon any federal criminal charges, and some legal scholars believe that also includes self-pardoning.
Pardon power does not apply to state cases, however, so Trump cannot pardon himself for the felonies.
But the chance of him now being sentenced in Manhattan is thin, even if the case survives his presidential immunity claim. As Politico pointed out, Trump’s lawyers are all but guaranteed to claim that he shouldn’t return to court during the presidential transition.
It adds that in the seemingly unlikely event that Merchan does sentence Trump to incarceration, it’s unlikely he would serve a day behind bars until his term as president wraps in 2029. The same is probably true if he is sentenced to community service or home confinement, given that his lawyers are poised to argue that a would-be or sitting president shouldn’t serve a sentence, Politico noted.
Trump faces several other criminal charges. In Fulton county, Georgia, he is charged over attempts to subvert the 2020 election. That case remains on hold pending appeal, after a scandal involving the district attorney, Fani Willis, apparently hiring the man with whom she had had an affair to be one of the prosecutors.
That case, too, would almost certainly not be able to resume proceedings until 2029, reports suggest.
Trump also faces federal election interference charges in Washington DC.
Another case against him, alleging that he illegally retained top secret government documents after leaving the White House, was thrown out in south Florida after the judge, Aileen Cannon, a Trump appointee, cited the supreme court decision. Prosecutors are appealing.
The justice department has long maintained that a sitting president cannot be prosecuted, and the president appoints the attorney general, who heads the justice department and drives what prosecutions it pursues – or abandons. The attorney general also presides over the appointment of special counsels: Joe Biden’s attorney general, Merrick Garland, in 2022 appointed Jack Smith as special counsel in the federal cases against Trump.
Trump has said he would fire Smith “within two seconds”.
On Wednesday morning, as the results of the election appeared to have tipped decisively in Trump’s favor, the senator Lindsey Graham, a Trump loyalist, expressed a similar sentiment, writing in a social media post addressed to Smith and his team:
“It is time to look forward to a new chapter in your legal careers as these politically motivated charges against President Trump hit a wall.
“The supreme court substantially rejected what you were trying to do, and after tonight, it’s clear the American people are tired of lawfare. Bring these cases to an end. The American people deserve a refund.”
As for the civil cases against him, Trump’s return to the White House does not provide the same level of protection. In the case of Clinton v Jones, the supreme court ruled that a sitting president can be sued, allowing Paula Jones’s federal sexual harassment lawsuit against Bill Clinton to proceed while Clinton remained president. Trump is appealing decisions in his sexual abuse and financial fraud civil suits.
