Donald Trump has Survived the Legal Cases that Threatened His Campaign

To request an interview with Professor Germain, please contact Ellen James Mbuqe, executive director of media relations, at ejmbuqe@syr.edu.

By Gregory Germain, Professor of Law, Syracuse University College of Law.

Donald Trump’s legal woes have been the center of international attention throughout this 2024 presidential election year. In less than two months before the Presidential election, here is a summary of where all those cases currently stand.

The E. Jean Carroll Defamation Case.  Trump’s year of litigation started in January with author E. Jean Carroll recovering  an $83.3 million judgment for defamation against Trump for accusing Carroll of lying when she claimed publicly in 2019 that Trump had sexually assaulted her in a department store dressing room more than 20 years earlier, in 1995 or 1996.  Trump posted a bond to obtain a stay while he appeals the judgment.

The NY Attorney General Financial Statement Fraud Case.  In February, New York Attorney General Letitia James’ civil fraud case against Trump for overstating the current market value of his properties in the personal financial statements he had submitted to lenders and insurance companies, came to trial without a jury before Judge Arthur Engeron.  Normally, civil fraud requires a plaintiff to prove that a victim believed and relied on the truth of the statements, and suffered damages as a result.  But the Attorney General successfully argued that a special anti-fraud statute, New York Executive Law § 63(12), allows her to recover disgorgement of benefits received without showing that anyone relied on or was harmed by the false statements.  Judge Arthur Engeron entered a judgment against Trump in February for $354 million in disgorgement, plus interest, which would have required him to post a $464 million bond to obtain a stay pending appeal.  The appellate division allowed Trump to post a reduced bond of $175 million to stay enforcement of the judgment pending appeal.

The Georgia Election Interference Case.  On June 5, the Georgia Court of Appeals issued an order staying District Attorney Fani Willis’s election interference case against Trump to consider Trump’s motion to disqualify the District Attorney for having an undisclosed relationship with her special prosecutor, Nathan Wade.  The trial judge, Scott McAffee, had previously allowed the case to continue if Nathan Wade resigned to prevent the appearance of impropriety.  The defendants appealed McAffee’s well reasoned order, and the case has been on hold by the appellate court since that time.  Frankly, I thought McAffee’s opinion was sound, and I never understood why Willis’s relationship with Wade in any way harmed Trump or the other defendants.

The New York Falsified Business Records Case.  Next came New York District Attorney Alvin Bragg’s convoluted criminal case against Trump for falsifying his business records to hide a $175,000 hush money payment made to Stormy Daniels through Trump’s then attorney Michael Cohen in the waning days of the 2016 election.  I have written about the case previously.  On May 30, 2024, the jury found Trump guilty under NYPL § 175.10 of falsifying business records to commit fraud and to conceal another crime, although the jury did not have to indicate who was defrauded or what other crime Trump was trying to conceal.  Trump was supposed to be sentenced on September 18, but Judge Merchan granted Trump’s request to postpone sentencing until after the election.  Sentencing is currently scheduled for November 26.

The Federal Cases.  The two federal court cases brought by Special Counsel Jack Smith are the most serious cases Trump faces, and both cases have been stuck in the mud for months.

The Federal Election Interference Case.  The federal election interference case before District Judge Tanya Chutkan in Washington DC has been delayed by questions about presidential immunity, and now also by technical issues around special prosecutor Jack Smith appointment.  These preliminary issues will need to be resolved before the case can proceed on the merits.

On July 1, 2024, the United States Supreme Court overturned Judge Chutkan’s and the DC Circuit Court’s rulings that Donald Trump, as a former president, had no immunity from prosecution.

Frankly, I expected that the Supreme Court would reverse those decisions, and recognize that a president has immunity from criminal prosecution for “core” presidential activities.  In fact, at the hearing before the Supreme Court, both the government and Trump’s lawyers agreed that an ex president is immune from prosecution for “official” presidential matters, and that there is no immunity for “private” matters.  Trump’s team even agreed that many matters alleged in Smith’s complaint sounded like “private” not “official” matters.  The disagreement was on how far “official” matters would go.

I was fairly confident that the Supreme Court would draw the official /private distinction by focusing on the president’s motives – was the president acting to further what he believed to be in the interests of the country, or did he have personal, corrupt, motives to benefit himself at the expense of the country?

I was wrong. Chief Justice Roberts’ majority opinion granted immunity far beyond what the Trump lawyers sought at the hearing. The Court held, first, that a president’s motives are entirely irrelevant to whether his activities are “official” and subject to immunity, or “private” and not subject to immunity.  Under the Court’s ruling, a president has absolute immunity for anything plausibly connected to his presidential functions, including the most blatant kinds of corruption (such as selling presidential pardons to the highest bidder, or directing the military to assassinate a political rival).  While it is difficult to imagine that the founders intended the Constitution to provide broad immunity from prosecution to a President Benedict Arnold, who sold out his country for personal gain, that was essentially the Court’s holding.

In an attempt to redraw the official/private distinction, Prosecutor Jack Smith has filed a superseding indictment eliminating the allegations that Trump conspired with his governmental advisors, and has labeled his allegations that Trump conspired with non-governmental advisors to be “private.”  But the labels do not matter.  Under the Supreme Court’s ruling, Trump is immune from activities that fall within a very broad sphere of presidential activity, even if he had false, improper and corrupt motives for his actions. Given the extremely broad way that the Supreme Court defined “official” activities and rejected motive, it is difficult to see how any of Trump’s attempts to overturn the election would qualify as purely “private” activities.

Nevertheless, Judge Chutkan and the DC Circuit will likely try to read the immunity ruling more narrowly than the Supreme Court wrote it, and allow the case to proceed.  And if the case does proceed, and Jack Smith is able to prove his allegations that Trump knew he lost the election, knew that his election interference claims were false, and nevertheless sought corrupt motives to overturn the election, then surely a jury would convict him.  But would the case survive another visit to the Supreme Court?  Judge Chutkan set a briefing schedule for the parties to argue the immunity question, with Trump’s reply brief due on October 29.  Since the case cannot move forward before the court rules on the immunity question, the only thing that could happen before the election is the filing by Jack Smith of evidence that support his arguments that Trump’s activities were “private” and not immune.

The second preliminary issue is whether Jack Smith’s appointment as special prosecutor was constitutional, and if not whether the case should be dismissed.  As discussed below, Judge Eileen Cannon dismissed the classified documents case against Trump on the grounds that Smith’s appointment was unconstitutional.  That decision is currently on appeal, and Chutkan stated on the record that she did not find Judge Cannon’s ruling to be “very persuasive.”  Judge Chutkan will likely decide that special prosecutor Jack Smith can proceed with the prosecution, but the process may be delayed further for briefing on that issue, and the ultimate ruling on Judge Cannon’s dismissal could derail the election interference case.

The Classified Documents Case.

In my view, the strongest case against Donald Trump is the classified documents case, which has been stymied at every turn by Judge Eileen Cannon.  Cannon, a Trump appointee, was previously and harshly reversed by the Court of Appeals for the 11^th Circuit, in an unusual unanimous per curium opinion, for improperly exercising equitable jurisdiction over the government’s investigation into the classified documents taken by Trump while leaving office.

After months of slow walking the case, on July 15, 2024, Judge Cannon dismissed the government’s indictment, determining that the Justice Department regulation under which Special Prosecutor Jack Smith was appointed was unconstitutional under the appointments clause of the Constitution.

The Constitution’s appointments clause requires the President to appoint, and the Senate to confirm, all “Officers of the United States,” except for “inferior Officers” who can be appointed by Officers without Senate approval if the Officers are authorized by law to make the appointment.  U.S. Const, Art 2, Sec 2. Cls 2.  The courts have recognized that mere “officials” and “employees” can be hired without authorizing legislation, presidential appointment, Senate approval, or direct appointment by authorized Officers.  The distinctions between “Officers,” “Inferior Officers,” “Officials” and “Employees” is not defined in the Constitution, and depends on factors like power, authority, control, and permanency.  By tradition, cabinet officers and the heads of agencies are Senate-approved “Officers,” including the Attorney General and all 93 US Attorneys running the district offices of the Justice Department.  The thousands of assistant US Attorneys and all of their staff are inferior officers, officials or employees, and are not appointed by the President or confirmed by the Senate.

The technical issue is whether Special Counsel Jack Smith, appointed by Attorney General Merrick Garland under the Department of Justice’s special counsel regulation, is an “Officer” who must be appointed by the President and confirmed by the Senate, an inferior officer who was appointed by an authorized Officer, or an official or employee who could be hired without Senate approval or congressional authorization.

The legal firepower behind Judge Canon’s decision comes from a law review article by Professors Steven G. Calabresi and Gary Lawson, Why Robert Mueller’s Appointment As Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87,115–16 (2019).  Calabresi and Lawson also filed amicus briefs with the Supreme Court in the Trump immunity case, and before Judge Cannon.  Even though it was not an issue the Supreme Court agreed to hear, Justice Thomas wrote a concurring opinion in the election interference case throwing his support behind questioning Jack Smith’s appointment.

While Calabresi and Lawson’s technical legal arguments, and Judge Cannon’s adoption of those arguments, are plausible, they fly in the face of 50 years of practice, including the Supreme Court’s famous Watergate tapes decision in US v. Nixon, 418 US 683 (1974), brought by special counsel Leon Jaworski, who was appointed under a similar justice department regulation, and whose appointment was not questioned by the Supreme Court.

There are legitimate criticisms of the Special Counsel Regulations.  If the Justice Department has a conflict of interest, should they be the ones to select the special counsel?  In 1978, after Watergate, Congress created a Special Prosecutor Act, later called the Independent Counsel Act, which allowed majorities of either party within the House or Senate Judiciary Committee to request that the Attorney General appoint a special prosecutor.  If the Attorney General made the appointment, a three judge panel of appellate judges, rather than the conflicted Attorney General, would select the special prosecutor.  This process provided some assurance that the special prosecutor would be independent from the conflicted justice department.  The Supreme Court upheld the Act in Morrison v. Olson, but the Clinton administration did not seek its renewal, preferring instead to control the process through agency regulation, which has created the issue.

There is really no way to know if the current Special Counsel Regulations are constitutional until the Supreme Court rules on them.  But even if they are not constitutional, there is no reason for dismissing the indictment against Trump.  Instead, the courts should allow the government to fix the problem by appointing a senate-approved “Officer,” such as the Attorney General or another United States Attorney to supervise the prosecution.  Professors Calabresi and Lawson have recognized that this is a technical constitutional issue that can be cured by appointing an approved “Officer” to supervise the case.  The technical defect in Smith’s appointment, which is easily curable, did not prejudice the defendants.  There is no reason that a United States Attorney appointed to supervise the case now could not ratify Smith’s past work, and allow Smith to proceed with the prosecution under supervision.  A case prosecuted by Jack Smith under the supervision of the United States Attorney would be like the thousands of cases brought by Assistant United States Attorneys every day in every jurisdiction.

What Happens Next?

The presidential election will take place on November 5, 2024.

If Trump wins the election, there is little doubt that he will cause the federal election interference and classified documents cases to be dismissed, either by appointing loyalists to take over the prosecution in the Justice Department, or by issuing himself a presidential pardon.  The Supreme Court has signaled in its immunity decision that a self-pardon is within the President’s absolute authority.

However, a presidential pardon only applies to federal crimes, so it would not prevent any of the state prosecutions or cases from continuing.  It is not clear whether a state prison sentence could be implemented against a sitting president, or how it could be implemented, or whether some sort of federal supremacy would prevent the states from interfering with the activities of an elected president.  Another constitutional crisis is likely if either of the state criminal cases results in a prison sentence.

If Trump loses the election, he will likely face years of trials and appeals before the legal issues will be finally determined.