Trump’s Legal Troubles Just Got a Lot Smaller

There will be no more convictions before the election. Maybe ever. And he’s not going to jail.

It’s been a tumultuous few weeks in the legal saga around Donald Trump, and suddenly the future has come into sharper focus. After months of high-stakes uncertainty, now we know for sure that Trump will not face trial on the biggest cases against him — relating to 2020 election subversion, January 6, and classified documents at Mar-a-Lago — before the 2024 election. He might never be convicted on anything beyond the Manhattan hush-money case, and that one stands on increasingly rickety legal footing. And the chances that Trump ever winds up behind bars are vanishingly slim.

There’s no use spinning fairy tales: All four Trump cases are circling the drain. Here’s how dire it’s gotten for anti-Trump legal crusaders. They’ve gone from “Don’t worry, he’ll be tried and convicted on the big cases before the election!” to “Don’t worry, the hush-money appeal will take long enough that a reversal won’t happen until after the election!”

Before we get to the legal fallout, Trump’s chances to snuff out all four cases at once, by winning the 2024 election, have decidedly risen over the past few weeks. It’s a sad state of affairs that we accept the inevitability that, if Trump wins, all his indictments are cooked — but it’s also true. He would almost certainly have his Justice Department dismiss the two federal indictments, and the state cases would be, at best, on hold until he left office in 2029. The chances of a Trump 2024 win have long been roughly 50-50. But now, in the wake of President Joe Biden’s haggard debate performance, the polls tell us that it’s more likely than that.

Even if Trump loses the election, he has received a golden gift in the Supreme Court’s presidential immunity decision. I don’t buy the most ominous scenarios floated by the case’s dissenting justices; there’s no realistic way any judge would find that ordering SEAL Team Six to assassinate a political rival is an “official act” entitled to immunity. (Actually, Justice Clarence Thomas might …) But I do agree that the majority’s ruling is astonishingly broad and will create confounding outcomes — starting with the current slate of cases against the former commander-in-chief.

The Supreme Court’s ruling leaves Special Counsel Jack Smith’s 2020 election-subversion case in tatters. The justices sent the case back down to the District Court with pointed guidance: Trump’s communications with the Justice Department are “official acts” and entitled to immunity, while the former president’s dealings with his vice-president and his public statements are presumptively immune, too. Remove those evidentiary pillars — Trump’s effort to deploy DOJ to find nonexistent proof of voter fraud, the pressure campaign toward Mike Pence, the January 6 “fight like hell” Ellipse speech — and there’s little left standing. Perhaps prosecutors can salvage Trump’s arm-twisting of state officials and the fake-electors scheme. But it’s not clear that’s sufficient to sustain Smith’s broad conspiracy charges or that there’s enough evidence left for prosecutors to tell a coherent, compelling story to a jury.

Judge Tanya Chutkan now has to pick through the wreckage, and she won’t have the final say. The Supreme Court noted sharply that it was unimpressed with the lower courts’ “expedition of this case [and] the lack of factual analysis,” and it gave Trump explicit permission to appeal the judge’s new determinations right back up the chain, before trial starts. This’ll take a while, and Smith won’t like the results.

The Fulton County indictment, which largely recasts Smith’s allegations and converts them into Georgia state-level charges, faces the same immunity problems. Beyond that, District Attorney Fani Willis’s overhyped, overcharged case is collapsing on its own set of self-inflicted wounds. The Georgia Court of Appeals has taken up the defendants’ claim that Willis has a disqualifying conflict of interest due to her relationship with since-departed lead prosecutor Nathan Wade, and that Willis’s “legally improper” (as the trial judge found) out-of-court public statements constitute prosecutorial misconduct. Not only has the appeals court accepted the case (when it didn’t have to), it has ordered the trial court to stand down entirely while it considers the issue. Not a great sign for the DA.

Smith’s classified-documents case seems least likely to feel the impact of the new immunity ruling because all of the charged criminal conduct — unlawful retention of national-security materials and obstruction of justice — occurred after Trump left office. That said, Trump’s team will argue that he obtained the documents in the first place as a core exercise of his presidential duties as chief executive and commander-in-chief, and his retention of them arose from those official acts. I don’t buy it, but it’ll give Trump a hook, and he’s got a shot with Judge Aileen Cannon (who already has granted a postponement to consider the immunity issue) and then, if necessary, the appeals courts.

The Supreme Court’s immunity decision even poses a threat to the Manhattan district attorney’s conviction of Trump for falsifying records of hush-money payments. While the vast majority of the prosecution’s trial evidence related to Trump’s pre-presidential conduct during the 2016 campaign, it also included key events that happened after he took office: conversations with White House communications director Hope Hicks, tweets sent from the official White House account, and a financial-disclosure form required of the president. If a court finds that Trump’s conduct was an official act, then it should have been immune and was improperly admitted against him at trial.

Given his rulings thus far, Judge Juan Merchan seems unlikely to side with Trump. Look for the judge to find that Trump’s conduct while president did not relate to official business and hence is not immune. But will the appellate courts — including, potentially, the Supreme Court itself — see it the same way? If communications between the president and DOJ are automatically immune, and talks between the president and vice-president are presumptively immune, are talks between the president and his White House communications director all that different? Keep in mind that the Court has instructed that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives,” and that the primary focus should be on the identity of the officials involved in the communication, rather than the substance. The Manhattan DA’s case was already built on a treacherously shaky legal foundation, and now the immunity issue gives the defense another arrow in the appellate quiver. Even if Judge Merchan rejects Trump’s motion and then sentences him to prison time, the Court’s new ruling essentially ensures that he won’t have to begin serving any sentence until after his appeals, likely a year or more from now. (And, if he’s president again by then, forget about it.)

In classic Trumpian fashion, he has done nothing to earn these newfound rewards — though, in some instances, his adversaries have hurt their own causes by delay and over-pursuit. And while there are plenty of valid criticisms of the Supreme Court’s immunity decision — I join in some of them — they’re academic now. This is the law; it’s binding on every court in the nation. And the Court has made clear that it will aggressively police application of its ruling. The Supreme Court has spoken, and everything has changed.

This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com