Justice Department plans to pursue Trump cases beyond Election Day, even if he wins

Justice Department officials plan to continue criminal prosecutions against Donald Trump beyond Election Day, even if he wins, with the expectation that the department's rulings barring indictment or prosecution of a sitting president would not take effect until Inauguration Day in January, according to people familiar with the discussions.

That approach could become even more consequential given this week's Supreme Court ruling on presidential immunity, which will likely cause further delays in Trump's election interference trial in Washington and has already affected one of his state affairs.

Law enforcement officials have long viewed the two federal indictments against Trump, the 45th president and the presumptive Republican nominee for this year’s election, as operating under potential time constraints. That’s because of the Justice Department’s longstanding policy that officials cannot criminally charge a sitting president.

Department lawyers do not believe the policy prevents them from prosecuting an elected president, according to people familiar with the discussions, who spoke on condition of anonymity to describe internal deliberations.

The plan to continue filing motions, requesting court hearings and possibly holding a trial between Election Day and Inauguration Day underscores the highly unusual nature of prosecuting not just a former president, but perhaps a future president. In the months after victory, a president-elect assumes some of the trappings of office, like increased security and high-level briefings, but that person is not the commander in chief.

In the midst of a presidential campaign, where criminal cases have played a central role, any judicial activity involving a president-elect would push American politics into even more uncharted territory. Ultimately, it would be up to the courts to decide when and how to hold hearings or a trial involving a president-elect.

“The Justice Department is not driven by the election calendar. Its prosecution of Trump is based on the law, the facts and the Justice Manual, the department’s bible that sets the post-Watergate standards that prevented him from being weaponized,” said Anthony Coley, a former Justice Department spokesman for Attorney General Merrick Garland, who left the agency last year. “Until those standards change, or are otherwise ordered, I expect this Justice Department to move full speed ahead. And it should.”

Current officials, speaking on condition of anonymity, expressed the same sentiment: If Trump wins the election, the clock on the two federal cases against him will continue to tick until January 20, when he is sworn in as the 47th president.

A spokesman for special counsel Jack Smith declined to comment. Trump spokesman Steven Cheung said the criminal charges against Trump were hoaxes that were imploding as their collective efforts to interfere in the election massively failed.

On Monday, the Supreme Court’s final day in office, it ruled 6-3 along ideological lines that Trump and other presidents enjoy broad immunity from prosecution for official acts. The landmark decision also established that presidents do not enjoy immunity for private acts, leaving the precise line between the two unclear.

The decision comes amid ongoing lawsuits against Trump for allegedly obstructing the results of the 2020 election. Legal experts say the Supreme Court's decision means the trial is likely not to take place before the November election, as prosecutors and Trump's lawyers continue to argue over what evidence can still be used against him. Those decisions could also end up going to the Supreme Court.

Justice Department officials were already skeptical about bringing a federal trial against Trump before the 2024 election, according to people familiar with the proceedings. In addition to the election obstruction case in Washington, he faces charges in Florida that he mishandled classified documents after leaving the White House and obstructed government efforts to retrieve them.

Both federal cases were scheduled to go to trial in the spring, but their trials have been significantly slowed for various reasons.

In Florida, the trial judge spent months considering a series of defense motions that have no chance of success to dismiss the case. The election obstruction case filed in Washington was frozen while an appeals court and the Supreme Court wrestled with the question of presidential immunity.

Even if the case does resume in Washington, there will likely be a series of pretrial battles in addition to the immunity issues that will take up a lot of time. Given the pace of hearings so far in both federal cases, it’s possible that even with the longer delay until Inauguration Day, neither will go to trial by then.

If Trump wins the presidency, his legal team will likely ask the judges overseeing the cases to drop the charges, or at least put the cases on hold while he is president. Trump's attorney general could also ask to have the charges dropped.

Trump also faces criminal charges in Georgia, where Fulton County District Attorney Fani T. Willis has accused him of conspiring to interfere with the results of the 2020 election in that state.

The Georgia case, which is stalled by another appeals issue, will also be affected by the immunity ruling. Trump's lawyers in that case have argued that if their client is elected president, his trial could not take place until at least 2029, when he leaves office.

The ripple effects of the immunity decision have already begun in Trump's other case in another state.

In New York, where Trump was convicted in May of falsifying business records related to a payment to an adult film actress, the trial judge on Tuesday postponed Trump’s sentencing, which was scheduled for next week. The judge gave lawyers several weeks to file written arguments on Trump’s request that his conviction be overturned following the high court’s immunity ruling.

Trump's allegations won't necessarily sway the judge, because the type of behavior at issue in the silence case could well fall into the category of what the Supreme Court calls unofficial personal actions for which a president can still be sued.

The former president is also likely to argue that some evidence used in the trial concerned his official conduct and should have been excluded, based on the Supreme Court's ruling.

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