What happens next with the criminal cases against the president-elect?

The rule of law lost this round, friends.

Photo by Markus Spiske on Unsplash

Although the election results show Donald Trump winning the popular vote, it feels as though the entire country is still processing the fact that he will be the 47th President of the United States (some happily, others bordering on despair). Aside from his promises to conduct mass deportations and impose tariffs on China (because that will lower the price of eggs?), it’s hard to identify any explicit policy reasons that explain why so many people voted for him again.

The chaos that’s to come is what the country apparently wanted.

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A few thoughts about the election…

As I told my students two days after the election, whether or not you voted for Trump, one thing is for sure: The federal government is about to change in drastic ways. It will never be the same again. It is entirely possible that the Constitution and the federal rule of law will become subject to the whim of one man. Under such a regime, Trump could become the rule of law. He will decide who is prosecuted and for what charges, and who evades justice—regardless of what the law actually says.

The signal of lawlessness this sends is already having an impact.

The day after Election Day, African Americans around the country began receiving disgustingly racist text messages. Hateful and harassing “her body, my choice” messages also spread online like wildfire. At Texas State University at San Marcos, men carried “women are property signs” around campus—one even calling us “slaves”—as Vice President Kamala Harris made her concession speech.

It is not hard to imagine that the senders of these messages did so after feeling “empowered” by Trump’s win.

We are in for some very disturbing years. I can only hope that it wakes people up. Sometimes we have to lose things to realize what really matters. And it’s not maintaining a culture of hate.

What about the federal criminal cases?

Of the two federal criminal cases against Trump, one is in front of U.S. District Judge Tanya Chutkan in Washington, D.C., regarding his attempts to overturn the 2020 election and incite an insurrection.

The other involving the classified documents that Trump unlawfully withheld from the FBI last time he was in office is on appeal to the U.S. Court of Appeals for the Eleventh Circuit. U.S. District Judge Aileen Cannon dismissed the indictment, reasoning (utterly unpersuasively) that Jack Smith’s appointment as Special Counsel was unconstitutional. Even if the Eleventh Circuit reverses her (which it should), the case is probably dead for the same reasons I explain below: Trump will toss Smith from the job altogether.

Smith is now tasked with figuring out how—if at all—he can proceed with what is—in all likelihood—the last (and first) prosecution of a former president for violations of federal criminal law. What hangs in the balance is the Constitution and the rule of law itself.

Recall that the January 6th case was initiated in November 2022 after Attorney General Merrick Garland appointed Jack Smith as the Special Counsel to lead the Department of Justice’s investigation into Trump’s attempts to overthrow the 2020 election. The case took a sharp turn after the Supreme Court majority decided that Trump and all former presidents had immunity from criminal prosecution should they commit crimes with official presidential power.

The immunity extends to all “core” presidential acts. Other acts that are still considered official have a rebuttable presumption of immunity. Only unofficial acts are unprotected. There was little to no direction on how to discern what classifies as official and what classifies as unofficial.

Smith and his team filed a superseding indictment with the same four counts in the original indictment (conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding, and conspiracy against rights). Smith carefully removed any language that involved Trump’s official responsibilities. He focused instead on the fact that Trump was acting in his capacity as a candidate for president, not as president.

Another brief from Jack Smith was filed on September 26, 2024, explaining how the immunity ruling should not kill the revised indictment. About a month later, Trump’s lawyers asked Judge Chutkan for more time to file a response in the debate about Trump’s immunity. Chutkan extended the deadline to November 21st.

So where does the January 6th case stand now?

Just three days after Election Day, Smith filed papers with Chutkan, stating that “as a result of the election,” the prosecution “respectfully requests that the Court vacate the remaining deadlines in the pretrial schedule to afford the Government time to assess these unprecedented circumstances.” He also said that “by December 2, 2024, the Government will file a status report or otherwise inform the Court of the results of its deliberations.”

What does this mean? Well, Smith essentially put a pause on the case to figure out what to do. Now that Trump is the president-elect, we have entered (once again) entirely unchartered territory. Trump’s lawyers are now relieved from the deadline for presenting their argument as to why Trump should get immunity in the January 6th case, probably permanently.

Smith nonetheless has some bracing decisions to make, and the best course of action is hardly clear.