Even as the federal criminal cases against Donald J. Trump seem to be dissolving in the face of his election victory, the racketeering prosecution against him in Georgia is moving forward for now. But it could be years before the president-elect faces trial there — if he ever does at all.
Mr. Trump’s lawyers in Georgia are likely to argue that the leader of the free world cannot be expected to stand trial for months on end in a courtroom in Atlanta. Indeed, most observers predict that his 14 co-defendants are far more likely to face trial than Mr. Trump himself, even though he stood to benefit the most from their efforts to overturn the 2020 election results.
In another case, in Manhattan, a jury already found Mr. Trump guilty of falsifying business records to cover up hush money payments to a porn star. But his victory in last week’s election greatly improved his legal position, very likely scuttling the federal prosecutions against him and giving him a stronger legal basis for arguing that the Georgia case should be delayed, if not dismissed.
Mr. Trump has yet to be sentenced in the Manhattan case, but his lawyers are expected to ask the judge overseeing it to delay the sentencing indefinitely.
In the federal case charging him with election interference, Jack Smith, the special counsel, asked for a pause in the proceedings days after the election. The case is almost certain to be dropped, since the Justice Department has a policy against prosecuting sitting presidents. Mr. Smith is also likely to abandon efforts to revive another federal case against Mr. Trump, over the mishandling of classified documents.
The Georgia case accuses Mr. Trump and his co-defendants of trying to subvert the 2020 election results by deploying fake electors in the state, trying to access voting machines and data in one of its rural counties, and taking a number of other illegal actions.
Four of the original 19 defendants have already pleaded guilty as part of cooperation agreements. The rest have pleaded not guilty, including Rudolph W. Giuliani, Mr. Trump’s former personal lawyer, and Mark Meadows, the former White House chief of staff.
How far along the case gets remains to be seen.
Next month, lawyers for Mr. Trump and other defendants will try to persuade an appeals court that Fani T. Willis, the Atlanta district attorney, should be disqualified despite a judge’s ruling that she could remain on the case. It is likely to take several months to resolve the disqualification question, which stems from revelations that Ms. Willis had a romantic relationship with the outside lawyer her office hired to run the prosecution.
If Ms. Willis remains on the case, Mr. Trump’s main lawyer in Georgia, Steve Sadow, will almost certainly try to have it delayed or dismissed on the grounds that a trial would keep Mr. Trump from fulfilling his oath to “faithfully execute the Office of President of the United States.”
Mr. Sadow will also very likely point to the Constitution’s Supremacy Clause, which generally establishes federal law to be above state laws.
Eventually, Mr. Sadow could also renew arguments that his client is immune from prosecution as a former and now future president. Mr. Sadow filed an immunity motion months ago; it was bolstered by a controversial Supreme Court ruling in July, which found that presidents have “some immunity from criminal prosecution for official acts.”
Asked about the future of the Georgia case, Steven Cheung, a Trump spokesman, said in a statement that “the American people have re-elected President Trump with an overwhelming mandate to make America great again.”
The statement continued: “It is now time, as President Trump said in his historic victory speech, to unify our country and work together for the betterment of our nation.”
Ms. Willis, a Democrat who just won re-election, declined to comment on the future of the case. Asked last month what might happen to the case if Mr. Trump won the election, she said, “I’m going to continue to prosecute every single case in my office.”
Much of the Georgia case is in limbo while the disqualification matter is resolved. The presiding judge, Scott McAfee of Fulton County Superior Court, cannot issue rulings involving Mr. Trump or many of the other defendants. But once the case returns to Judge McAfee’s courtroom, presumably sometime next year, a number of issues will be in play.
Should she remain on the case, Ms. Willis will very likely need to file a superseding indictment in light of the Supreme Court’s immunity ruling, leaving out actions Mr. Trump took after the 2020 election that could be categorized as “official” and thus be shielded from prosecution. That could require her to go back to a grand jury.
Ms. Willis will also have to decide whether she wants to try all of the defendants together, or move ahead with trying Mr. Trump’s 14 co-defendants while he is in office. Such a trial could take place as early as next year. (A few of the same defendants are also facing trial in Arizona on similar charges.)
A number of Mr. Trump’s co-defendants have already tried and failed to move the case to federal court; on Tuesday, the Supreme Court rejected Mr. Meadows’s attempt to do so. But the high court might be more inclined to become involved, if necessary, to shield a sitting president from state prosecution.
Since three of the nine justices are Trump appointees, at least one defense lawyer in the Georgia case believes that the high court would prevent Mr. Trump from being prosecuted over the next four years.
“I think they would postpone everything,” said the lawyer, Harvey Silverglate, who is representing John Eastman, a legal adviser to the 2020 Trump campaign and a co-defendant in the Georgia case. “I think they would say a sitting president could not be tried or imprisoned. They’d postpone everything till he’s no longer in the White House.”
Anthony Michael Kreis, a constitutional law professor and political scientist at Georgia State University, predicted that the chances of Mr. Trump facing trial while in office were “absolutely zero.”
Mr. Trump’s lawyers could also cite a Justice Department memo written in 2000, which determined that the “indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” The memo was specifically referring to federal indictments of sitting presidents.
A further complication is that the Georgia indictment predates the latest election. But some supporters of the case are adamant that Ms. Willis should stick to it.
“Let’s be realistic that it’s an uphill struggle, but, by the same token, prosecutors should not fall down before they’re hit,” said Norman Eisen, who served as special counsel to the House Judiciary Committee during Mr. Trump’s first impeachment trial. “The right thing to do as a matter of prosecutorial integrity and democratic principle is to proceed with the case and to see what happens.”
Ms. Willis has shown little inclination to retreat over the course of her career. She has prosecuted two of the longest-running racketeering cases in Georgia history: a cheating scandal involving public schoolteachers a decade ago, and the case against associates of the Atlanta rapper Young Thug. She has stuck with the Trump case despite violent threats from his supporters and Mr. Trump’s own repeated verbal attacks against her.
On Dec. 5, a panel of three state appellate judges is set to hear arguments on whether Ms. Willis should be disqualified. The three judges who will rule on the matter were all appointed by Republican governors. Judge McAfee, who wrote the ruling allowing Ms. Willis to keep the case, is a young but respected conservative judge who may be shown deference.
A ruling on the appeal is expected by March, but the case will very likely end up before the Georgia Supreme Court. If Ms. Willis is kicked off the case, there is a chance that the entire Trump indictment could be scuttled, since a replacement prosecutor would be picked by a Republican-led state prosecutors’ council.
Ms. Willis has been presiding over the investigation and prosecution of the case for nearly four years, starting in the weeks after the Jan. 6, 2021, attack on the Capitol. She was recently asked by a reporter what she would do if the courts tried to stop her from seeing the Trump case through to completion.
“I’m getting too old to worry about things I can’t control,” she said.
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