As Donald Trump prepares to return to the White House in January, he continues to face a barrage of legal actions against him.  Syracuse University law professor Gregory Germain has been following the criminal and civil cases.

In this article, Prof. Germain summarizes the status of all of the cases and discusses what happens next. If you’d like to schedule an interview, please contact Ellen James Mbuqe, executive director of media relations at ejmbuqe@syr.edu.

Criminal Cases

1. Falsifying Business Records, New York Law.  Trump has been convicted and is scheduled to be sentenced for a Class E felony for falsifying business records in the criminal case brought by Manhattan District Attorney Alvin Bragg, and pending before Judge Juan Merchan.  He faces potential prison time in the case.
2. Election Interference, Georgia Law.  Trump has been indicted in Georgia by District Attorney Fani Willis for election interference.  The case has been mired in controversy following revelations that Willis had an affair with special prosecutor Nathan Wade.  Fulton County Superior Court Judge Scott McAfee allowed Willis to continue with the prosecution if Wade resigned, which he did, but the case has been derailed by an appeal from Trump and the other defendants.
3. Classified Documents – Federal Law.  Trump has been indicted by Special Counsel Jack Smith on federal charges for stealing, retaining, and making false statements about classified documents that he took from the White House after losing the 2020 election.  The case was assigned to District Judge Aileen Cannon, who was appointed by Trump, and was reversed by the 11^th Circuit Court of Appeals for earlier rulings improperly taking jurisdiction and appointing a special master during the investigation of the document theft.  Judge Cannon dismissed the charges against Trump on a technicality, by finding that Jack Smith’s appointment under the Department of Justice’s special counsel regulation, and the regulation itself, violated the appointments clause of the Constitution.  Cannon did not give the government an opportunity to remedy the election clause deficiency, such as by appointing a Senate approved United States Attorney to supervise the case.  Cannon’s decision is on appeal to the 11^th Circuit Court of Appeals.
4. Election Interference – Federal Law.  Trump has been indicted by Special Counsel Jack Smith for election interference in the 2020 election.  The case was delayed because of controversy concerning the standard for presidential immunity.  The trial court and the D.C. Circuit ruled that a former president has no immunity for crimes committed while in office.  The Supreme Court reversed that in Trump v. United States, ruling that a president has broad immunity for actions taken even in bad faith and for personal gain broadly connected with his official duties.  Prosecutor Jack Smith has attempted to limit the indictment to address the Supreme Court’s immunity ruling, but serious immunity questions remain.  The case is pending before Judge Tanja Chutkan, a Barack Obama appointee.

Civil Cases

1. Defamation – New York Law.  E. Jean Carroll recovered an $83,300,000 civil judgment against Trump in Manhattan for defamation.  Carroll claimed that Donald Trump sexually attacked her in a department store in the 1990s, and claimed that Trump’s denials and attacks constituted defamation.  Trump posted a bond and obtained a stay pending appeal, and the case is on appeal.
2. Financial Statement Fraud – New York Law.  New York Attorney General Letitia James, who campaigned for election on promises to “get Trump,” brought civil claims against Trump for disgorgement of gains realized by using an inflated personal financial statement used when seeking insurance policies and obtaining secured claims for his subsidiary corporations from sophisticated lenders.  State court judge Arthur F. Engoron awarded the Attorney General $363,800,000 in damages, which now amounts to over $450,000,000 with interest.  The court also barred Trump and other executives from being officers of a New York corporation, and appointed a receiver to liquidate Trump’s company.  The Court of Appeals granted a special stay pending appeal upon the posting of a reduced $175,000,000 bond.  The liberal 1^st Department Appellate Division raised questions about the propriety of the judgment.

There seems little doubt that the federal cases brought by Jack Smith will be terminated.

Gregory Germain

What happens to the Criminal Cases?

The Department of Justice has issued two detailed memorandum opinions, one in 1973 and another in 2000, discussing a sitting president’s scope of immunity from criminal and civil actions.  In both opinions, the Department determined that a sitting president cannot be indicted, prosecuted or jailed for a criminal claim while in office.  The Department based both decisions on the principles of separation of powers – holding that the indictment, prosecution or jailing of a sitting president would allow one branch of government (the judiciary) to interfere with another branch of government (the executive).  No other executive officers (including the Vice President – a matter of contemporaneous concern for Vice President Spiro Agnew in 1973) would enjoy such immunity.  The opinions apply equally to federal and state prosecutions.

So it’s clear that the federal prosecutions brought by Jack Smith will not continue, even if Trump did not pardon himself or cause Smith to be removed from office and replaced with a loyal alternative.  And there is every indication from Trump that he will attempt to remove Smith or accept his resignation, or more likely will pardon himself.  While the Department has another opinion rejecting the President’s power to self-pardon, the Supreme Court’s immunity ruling stated that a President’s pardon power is unlimited – even suggesting that the corrupt sale of pardons would not affect the validity of the pardons.  So I have no doubt that the Supreme Court majority would uphold a self-pardon.  So there seems little doubt that the federal cases brought by Jack Smith will be terminated.

The President’s pardon power does not extend to state prosecutions.  However, the Justice Department’s separation of powers rulings apply to all criminal prosecutions, state and federal.  Under the Justice Department’s opinion, it seems clear that the state criminal prosecutions must be stayed while President Trump is in office.  There is even an argument under those opinions that the cases must be dismissed, because the opinions held that an indictment of a sitting president that was stayed from further prosecution while in office would interfere with the functioning of the presidency.  The same could be argued for a stayed sentence.  I also have no doubt that the current Supreme Court would agree with the separation of powers arguments made in the Justice Department’s rulings.  In its immunity decision, the Supreme Court adopted the broadest possible view of presidential immunity, and even the dissenting justices expressed concern about politically-based state prosecutions interfering with the functioning of the president.  So in all likelihood, the state criminal cases will be put on hold during Trump’s presidency.  If they try to continue with the prosecutions, or even to impose a stayed sentence, I suspect the decisions will be reversed on appeal.  It is even possible that the cases will be dismissed.

What Happens to the Civil Cases?

The continuation of the civil cases is far more uncertain.  There are two important civil precedents from the Supreme Court:  Nixon v. Fitzgerald, 457 U.S. 731 (1982), and Clinton v. Jones, 520 U.S. 681 (1997).  In Nixon v. Fitzgerald, the Court recognized that the sitting president is broadly immune from liability in civil actions for official conduct, both while in office or afterward.  The case has limited applicability to the three civil actions discussed above, because all of the alleged acts (defamation, falsifying business records, and inflating financial statement) had nothing to do with his official acts, not did the acts occur primarily while he was in office.

The second case, Clinton v Jones, involved civil charges by Paula Jones for alleged misconduct before Clinton was in office and completely unrelated to his official duties.  The Supreme Court held that the civil charges could continue, but that the court would have to make special arrangements from the president’s participation in the action so as not to interfere with the performance of his presidential duties, suggesting that any depositions would have to be taken in the White House, and that the president could not be compelled to testify live).  So the Clinton case suggests that the appeals in the civil cases can continue, because they are unlikely to require President Trump’s personal participation.  If, as I think likely because of legal errors and excessive awards, the civil cases are reversed on appeal and remanded for new trials, the courts on remand would have to be very careful to conduct a fair trial without interfering with the president’s official functions.

If the election shows anything, it shows that the public does not like politically motivated prosecutions and impeachments.

Gregory Germain

Thoughts on the Future of Politically Motivated Prosecutions

The Democratic Party and its politically motivated government prosecutors also need to reconsider their actions.  If the election shows anything, it shows that the public does not like politically motivated prosecutions and impeachments.  The argument that Trump was a convicted felon backfired, as the public saw him as a victim of biased and politically motivated prosecutions brought in Democratic strongholds.  Now the ball is in Trump’s court to see if he will carry through on his threats to “do unto others as they did unto him.”  If he does carry through on his threats, I suspect his support will quickly fade.