Modern Australian
Times Advertising

With Trump returning to the White House, what will happen to his court cases?

  • Written by Markus Wagner, Professor of Law and Director of the UOW Transnational Law and Policy Centre, University of Wollongong

US President-elect Donald Trump achieved a resounding victory on several fronts. He will comfortably govern with a likely majority in the Senate and the House of Representatives, with little to no opposition from Republican members of Congress.

Having reshaped the US federal judiciary, and especially the Supreme Court, to his liking in his first term, he now has the chance to cement this judicial legacy for decades.

But he is also the first sitting or former president to be criminally convicted. As with many things Trump, this is uncharted territory.

Until election day, the then-former president faced the possibility of spending decades behind bars. The two federal indictments against Trump will disappear either before or shortly after his inauguration. While Trump cannot wave a magic wand over the two cases before state courts, his chances of having to govern from prison are slim.

The federal cases

The two federal cases are the easiest for Trump to get out of. Attorney-General Merrick Garland appointed Jack Smith as special counsel for the two cases against Trump over his efforts to undermine the 2020 elections and his handling of classified documents after stepping down from the presidency in 2021.

In June and July 2023, Trump was charged with dozens of felonies over retaining classified records after he had left the White House. In an often protracted and baffling pretrial process, the judge first postponed and then dismissed the case entirely on July 15 2024. Trump appointee Judge Aileen Cannon found Smith’s appointment was unconstitutional. The decision is under appeal.

On August 1 2023, Smith charged Trump with four crimes pertaining to federal election interference in connection with events prior to and on January 6 2021. Trump’s lawyers argued he was immune from prosecution because he acted in his official capacity as president. The Supreme Court stepped in and raised the bar for prosecuting presidents.

Along ideological lines, the court decided that presidents have “absolute immunity” for their “core constitutional powers” and “presumptive immunity” for all other official acts. The case was handed back to the trial court to determine if the charges should be partly or wholly dismissed.

Shortly before the 2024 election, Trump reiterated that he “would fire [Smith] within two seconds. He’ll be one of the first things addressed”. There are no constitutional or legal barriers to a president directing the attorney-general to dismiss federal cases against a president.

It may not have to come to that. A 1973 memorandum from the Office of Legal Counsel (OLC), situated within the US Justice Department, argued against the prosecution of a sitting president. Confirming its Watergate-era findings, another OLC memorandum from 2000 stated plainly:

[T]he indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

Smith has already indicated he will likely wind the cases down.

The same rationale was used by former special counsel Robert S. Mueller in the 2019 investigation into Trump and his associates over the interference of Russia in the 2016 elections. In deciding not to pursue criminal charges against Trump, who was then president, the Mueller report relied on that memo.

The Georgia and New York cases

Trump has no formal power over state prosecutions once he assumes the presidency.

The Georgia case involves numerous charges, including an indictment over racketeering in connection with the 2020 elections. The case hit a snag when state prosecutor Fani Willis was accused of having a financial conflict of interest due to hiring Nathan Wade, with whom she had a relationship, as a special prosecutor in the case.

Trump and some of the other defendants tried to get Willis disqualified, a motion that was denied by Georgia courts. The decision is under appeal, with oral arguments scheduled for December 5 2024. The trial court proceedings are on hold, pending the outcome of the appeal.

Should Trump be convicted, he could appeal to a likely amenable Georgia State Board of Pardons and Paroles, which is appointed by the Republican state governor.

Trump was found guilty in a case concerning the falsification of business records in the so-called “hush money case” involving a former adult film star. After a six-week trial in which Trump was held in contempt of court twice, it took a unanimous Manhattan jury less than two days to hand down a guilty verdict on all 34 felony charges brought against him by the Manhattan district attorney. Trump’s lawyers were successful in delaying his sentencing hearing, which is now set for November 26 2024. His punishment could range from a fine to prison time.

Had Trump lost the 2024 election, he would have been sentenced in New York on November 26, and possibly in Georgia at a later stage, if convicted.

Now that he has prevailed, his lawyers are arguing the cases should be thrown out (a hearing has been set for November 12). If that doesn’t work, they may lean on the untested argument that the supremacy clause of the US Constitution prevents state courts from sentencing a president-elect. If judge Juan Merchan decides against Trump, he would have the chance to appeal, including all the way to the US Supreme Court.

The most likely scenario is that Merchan will apply the spirit of the OLC legal memorandum. While it technically applies only to sitting presidents and only binds federal agencies, the requirements of a president-elect make it plausible that Trump’s hearing or his punishment would be postponed at least until he steps down or his term ends in 2029.

The January 6 defendants

Trump’s victory hasn’t only given him temporary respite from criminal punishment. Given his past statements about what happened on January 6 2021, he may also agree to pardon those who have either been convicted or who still face prosecution for the storming of the Capitol. The first applications to delay sentencing until after the Trump inauguration have already been made.

This would be yet another first in US history.

Authors: Markus Wagner, Professor of Law and Director of the UOW Transnational Law and Policy Centre, University of Wollongong

Read more https://theconversation.com/with-trump-returning-to-the-white-house-what-will-happen-to-his-court-cases-243128

Interstate Car Transporter Urges Buyers to Book Early

As the conflict in the Middle East continues to put increasing pressure on local fuel supply, Australian transport companies are experiencing increasi...

Digital Minimalism for Business Owners: Fewer Tools, Better Systems

Be honest. How many apps are open right now? One for scheduling, another for invoices, a third for customer notes, plus a spreadsheet someone email...

The Importance Of Proactive NDIS Renewal Preparation For Sustaining Your Provider Business

Your NDIS renewal notice is not a signal to start preparing. By the time it arrives, preparation should already be well underway. For new providers, s...

Why Fire Extinguisher Testing in Sydney Is Becoming a Records Game, Not Only a Maintenance Job

A fire extinguisher used to feel like one of the simpler parts of building safety. It hung on the wall, wore a service tag, and sat there quietly unle...

The Switchboard Upgrade Question Every Melbourne Renovator Should Ask Before the Walls Close Up

Renovations have a funny way of making people think on surfaces first. Splashback, stone, joinery, tapware, paint. Fair enough too. That is the exciti...

Winter Sanitation Gaps in Parramatta Kitchens: A Hidden Pest Risk

Winter brings a host of changes to our homes, from the chill in the air to the cozy warmth indoors. However, this season also introduces sanitation ch...

When to Seek Advice from Employment Lawyers in Melbourne

Australian employment law is detailed and, at times, complex, with rights and obligations that aren't always obvious to employees or employers witho...

7 Benefits of Professional Gutter Cleaning for Australian Homeowners

Gutters aren't exactly glamorous. They sit up there on the edge of your roof, doing their job quietly - until they stop working. Clogged, overflowing ...

Pipe Floats Strengthening Pipeline Performance In Demanding Environments

Pipelines often travel through environments that are anything but predictable, water currents shift, terrain changes, and materials keep moving unde...

Why Ceiling Fans Are Essential For Comfort, Efficiency, And Modern Living

Creating a comfortable indoor environment is not just about temperature; it is about how air moves, how a room feels, and how efficiently energy is ...

Why Duct Cleaning In Melbourne Is A Smart Investment For Healthier Living Spaces

Behind your walls, ceilings, and vents lies a network quietly working every day to keep your home comfortable. Yet over time, this system can become...

Disability Service Providers Supporting Inclusive And Independent Living

Finding the right support system can feel like assembling a puzzle where every piece must fit just right. For individuals and families navigating di...

A Beginner's Guide to Owning a Caravan in Australia

Owning a caravan opens up a style of travel that's hard to match for freedom and flexibility. However, for those just starting out, the process of c...

Preparing Your Air Conditioner for Summer: What Most Homeowners Overlook

As temperatures rise, many homeowners switch on their air conditioning for the first time in months — only to find it’s not performing the way i...

What Actually Adds Value to Properties in Newcastle

Newcastle has seen steady growth over the past few years, with more buyers looking beyond Sydney for lifestyle, space, and long-term value. As dema...

What is Design and Build in Construction?

Imagine you’re about to start a new construction project, maybe it’s a custom home or a commercial building. You’ve got the idea, the land, an...

Commercial roof leak detection: why early action protects your building

Water ingress is one of the most disruptive and costly issues facing commercial properties. For property managers and facilities teams, even a minor...

Custom Photo Frames: Turning Everyday Moments into Lasting Displays

Photos capture moments, but how you display them determines how they’re experienced every day. A meaningful photograph deserves more than a generi...