The Supreme Court could intervene to save former President Donald Trump from prison if he wins a second White House term on Tuesday, according to a prominent legal scholar.
Professor David Driesen, a constitutional law professor at Syracuse University and author of The Specter of Dictatorship: Judicial Enabling of Presidential Power, told Newsweek that a Trump victory would be “game over for the two federal [criminal] cases” the former president has been facing.
In May, Trump was convicted in New York on 34 felony counts of falsifying business records, which prosecutors claim he orchestrated to conceal the payment of hush money to former adult film actress Stormy Daniels. Sentencing is currently scheduled for November 26, with Trump continuing to deny any wrongdoing and branding the case “corrupt.”
Trump has also been indicted in Georgia on 13 counts related to claims he broke the law attempting to overturn the 2020 presidential election outcome in the state, including breaching the state’s Racketeer Influenced and Corrupt Organizations (RICO) Act. He has denied any wrongdoing.
At the federal level, Trump was indicted on four counts of allegedly working to illegally interfere in the 2020 election results in the run-up to the riot on January 6, 2021, at the U.S. Capitol. Special Counsel Jack Smith re-issued the indictment in September after a Supreme Court ruling in July giving the president broad immunity from prosecution for “official acts” taken in office.
Trump was also charged with 40 criminal counts over claims he illegally held onto classified documents after leaving the White House in 2021 and obstructed efforts to return them to the relevant authorities. District Court Judge Aileen Cannon later dismissed the case on the basis that Smith’s appointment as special counsel was unconstitutional, though this is being appealed.
Trump denied any wrongdoing in both the federal election interference and classified documents cases, claiming the charges against him were politically motivated.
Driesen spoke to Newsweek about what could happen in Trump’s New York hush money case if he receives a second White House term. He said: “Current law does not prohibit sentencing Donald Trump for his private conduct or even placing him in jail.
“But the Supreme Court may invent new law to keep Trump out of jail if New York Justice Juan Merchan sentences him to prison while his time in office,” he said. “The high court has already shown a willingness to protect Trump, especially when it granted him immunity from criminal trial for official misconduct in Trump v. United States.”
Driesen made the same argument for the Georgia case.
“Under current law, President Trump can be tried and imprisoned for election interference in the Georgia case. But as in the New York case, the Supreme Court might well intervene to keep Trump out of jail during his presidential term,” he said.
Newsweek reached out to Trump’s legal team and his presidential campaign for comment via email on Tuesday.
Trump appointed three Supreme Court justices during his presidency: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Of the nine justices currently on the court, six were described by the BBC as ” conservative.”
For the federal election interference and classified documents cases, Driesen said if Trump is elected president again, he would likely be able to torpedo the prosecutions entirely.
“Donald Trump has said that if he is elected, he will fire Jack Smith, and there’s no reason to doubt he would,” he told Newsweek. “The U.S. political system has lost many of the checks and balances that were in place before Trump was elected in 2016.
“Given the failure to impeach Trump for his part in the January 6 insurrection and the decision by almost all congressional Republicans to support him, it is very unlikely that the abuse of power of firing Smith would trigger a move to impeach Trump, as it did when former President Richard Nixon committed a similar transgression.
“Existing law protects Smith from dismissal. I would expect the Supreme Court to reverse Morrison v. Olson, which upholds for-cause removal protection for independent prosecutors to protect Trump and allow arbitrary removal of the independent counsel.”
However, Driesen argued that should Trump’s bid to remove Smith fail, he would still be protected during his time as president.
“Even if Smith stayed on the job in a Trump administration, in a hypothetical world where checks and balances functioned, he would still face DOJ policy prohibiting the prosecution of a sitting president,” he said. “So, Trump’s election would be game over for the two federal cases against him, just about any way you look at it.”
Separately, Trump has been ordered to pay $454 million in damages for a civil case after New York Judge Arthur Engoron concluded he had deceived banks, insurers and others for years by inflating his wealth on documents used to secure deals and loans.
Trump denied these allegations and is appealing the ruling. The amount owed has since risen to $489 million due to interest.
Driesen suggested that if re-elected, Trump might try to pressure New York Attorney General Letitia James, who brought the case, though he questioned whether this would be successful.
“New York Attorney General Letitia James’ business fraud case against Donald Trump will continue even if he is elected. Trump’s appeal of the $454 million judgment against him is playing out in court. If he loses on appeal, Trump would have zero legal basis to use the powers of the federal government to shield his business from the judgment,” Driesen said.
“But Trump has shown a willingness to violate norms and to use the bully pulpit against political figures and business leaders that draw his ire. I would expect Trump to apply the same pressure to James and to any court or business that gets involved in trying to secure payment of the judgment.
“But the court system is pretty resistant to that kind of pressure, so unless he wins on appeal, Trump will have to pay up on that massive judgment against him.”
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