He’s hitting the mark. Having managed by playing for time to postpone most of his criminal trials until after the presidential election, Donald Trump, declared the winner of the vote on Wednesday, hopes to find himself sheltered from legal proceedings.
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A final legal obstacle nevertheless awaits him on November 26 in New York before his official return to the White House on January 20: the pronouncement of his sentence in the only one of his four criminal trials that his lawyers have not succeeded in delay beyond 2024.
Found guilty on May 30 by New York State courts of “aggravated accounting falsification to conceal a conspiracy to pervert the 2016 election,” he theoretically faces up to four years in prison.
This case concerns the payment of $130,000, disguised as legal fees, to pornographic film star Stormy Daniels, to silence a sexual relationship in 2006, which Donald Trump denies.
But the hypothesis that Judge Juan Merchan imposes a prison sentence on him, in the case of a first criminal conviction, now appears highly improbable in the face of the insurmountable practical difficulties that the incarceration of an elected president and then current president would raise, according to experts.
As for the two federal proceedings against him, if Donald Trump’s legal horizon brightened spectacularly this summer, it now appears completely clear at least for the four years of his new mandate.
The Republican candidate indicated at the end of October that he wanted, if elected, to “fire” the special prosecutor responsible for these two cases, Jack Smith, appointed by the Minister of Justice of the current Democratic administration, Merrick Garland.
“I would fire him in two seconds,” he said in an interview in response to a question about whether he would pardon himself or have special prosecutor Jack Smith fired.
Untouchable sitting president?
The two cases investigated by the special prosecutor focus on Donald Trump’s allegedly unlawful attempts to overturn the results of the 2020 election and his withholding of classified documents after his departure from the White House.
In the first, in Washington, the Supreme Court recognized on July 1 that the President of the United States had a broad presumption of criminal immunity, forcing Jack Smith to present a revised indictment at the end of August.
The special prosecutor then developed in a voluminous document his arguments to demonstrate the private nature of the acts for which Donald Trump is being prosecuted, which are therefore not, according to him, covered by criminal immunity for his “official acts”.
In the second case, in Florida (southeast), Judge Aileen Cannon canceled the proceedings on July 15 on the grounds that the appointment of the special prosecutor in this case and the financing of his work violated sections of the Constitution relating to appointments and expenses. This decision is currently under appeal.
Once again president, Donald Trump could either appoint a new Justice Minister who would fire Jack Smith, or simply order his Justice Department to drop the charges.
In this regard, he will be able to invoke the constant policy of the Ministry of Justice consisting of not prosecuting a president in office.
However, this policy should not legally apply to criminal proceedings already initiated before his accession to power, since “it is a very different situation”, says Claire Finkelstein, professor of law at the University of Pennsylvania (northeast ).
But since this is the interpretation that will prevail under a Trump administration, in these federal procedures, “as things currently stand, he could only be judged after leaving power,” she adds.
What remains are the prosecutions in the key state of Georgia (southeast), where Donald Trump is being prosecuted with 14 other people for facts similar to those in his federal case in Washington, under a law of this state on crime in an organized group.
In this case, which has been stalled at least until next year, everything will depend on the decision of the state appeals court, which received a request from the accused to withdraw from the prosecutor’s office.
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