Election may decide if Trump’s legal woes reach US Supreme Court or wither

The U.S. Supreme Court during its last term handed Donald Trump victories in three major cases. But those may not be the last of the former president’s legal entanglements that the court is asked to decide.

Seven important cases featuring Trump as the defendant are currently in the lower courts — two involving federal criminal charges, two state criminal prosecutions and three civil lawsuits. These eventually could be appealed to the Supreme Court, though it is not likely to hear any of them during its new nine-month term that began on Monday.

And this does not count the potential for litigation over voting results in the Nov. 5 U.S. election. Trump is the Republican candidate facing Democratic Vice President Kamala Harris, with the winner becoming president on Jan. 20.

The fate of at least two of the cases with Trump as a defendant could hinge on the election’s outcome.

If Trump regains the presidency, he could seek to pardon himself or have his new Justice Department leadership pull the plug on the two federal criminal cases pursued by Special Counsel Jack Smith. One involves Trump’s efforts to overturn his 2020 election loss to Democrat Joe Biden. The other involves classified documents he retained after his presidency ended in 2021.

State criminal charges are beyond the reach of presidential pardon authority. The two state criminal cases are Trump’s May conviction on New York charges involving hush money paid to porn star Stormy Daniels, and charges involving the 2020 election in Georgia.

The civil cases are a judgment against him in state court in New York for civil fraud over business practices, and two judgments against him in civil litigation brought in federal court in New York by E. Jean Carroll, a writer who accused him of sexual assault and defamation.

If Trump loses in November, all the various cases would proceed in the lower courts and could potentially be appealed to the Supreme Court in due course as they otherwise would have. Trump pleaded not guilty in the criminal cases and denied wrongdoing in all the cases.

The Supreme Court ruled in July that former presidents have “absolute immunity” from criminal prosecution for actions they took as part of their constitutional powers, and have somewhat lesser protection — presumptive immunity — for conduct arising from their official responsibilities. The ruling arose from Trump’s challenge to Smith’s election-related case.

The justices returned the case to U.S. District Judge Tanya Chutkan in Washington to apply their new immunity standard to Trump’s indictment. They directed Chutkan to comb through Smith’s allegations to determine if any are covered by immunity and must be tossed out.

Smith’s team responded to the Supreme Court’s ruling by obtaining a revised indictment, with prosecutors narrowing their approach in light of the new immunity standard.

Assuming Trump has not become president and ended the case that way, Chutkan’s eventual application of the immunity ruling to these charges most likely would be appealed first to the U.S. Court of Appeals for the District of Columbia Circuit, with the Supreme Court as the expected next step.

“If Trump loses the election, the Supreme Court will almost certainly revisit his immunity as former president,” University of Illinois Chicago law professor Steve Schwinn said. “The Supreme Court’s immunity opinion leaves plenty open to interpretation, and the court will surely review any lower-court ruling interpreting it.”

A Trump election victory most likely would doom Smith’s cases.

“The new attorney general (appointed by Trump) would terminate the special counsel appointment and have the charges against Trump dropped,” said Anthony Michael Kreis, a law professor at Georgia State University College of Law.

The Supreme Court’s 6-3 conservative majority includes three justices appointed by Trump. In another decision favorable to him, the court in March reversed a judicial decision that had barred Trump from Colorado’s presidential primary ballot. In June, it raised the legal bar for prosecutors pursuing obstruction charges in the federal election subversion case against Trump and defendants involved in the Jan. 6, 2021, attack on the Capitol.

Documents case

Smith’s office has asked the Atlanta-based 11th U.S. Circuit Court of Appeals to revive the federal criminal charges concerning the documents after Florida-based U.S. District Judge Aileen Cannon threw out the case in July.

Cannon, named to the bench by Trump in 2020, ruled that Smith’s 2022 appointment violated the U.S. Constitution because Congress did not authorize Attorney General Merrick Garland to name a special counsel with that degree of power and independence.

The earliest the 11th Circuit is likely to rule is March. Assuming a new Trump administration has not already jettisoned Smith, then the Supreme Court “will be very likely to weigh in on the constitutionality of Smith’s appointment,” said Georgetown University law professor Erica Hashimoto.

Conservative Justice Clarence Thomas already has signaled his interest in addressing the legality surrounding special counsels. Four justices must agree to hear a case for it to be taken up by the court.

In the hush money case, Trump is scheduled to be sentenced on Nov. 26 by Justice Juan Merchan. Hashimoto said the judge probably would postpone sentencing if Trump wins the election. Trump ultimately could appeal his conviction to the Supreme Court.

“Trump also raised an immunity argument in the New York hush money case,” Hashimoto said, “and it will undoubtedly be one of the arguments he will make in the Supreme Court if he loses in the New York Court of Appeals.”

Georgia election case

Trump could similarly seek in a Supreme Court appeal to claim immunity in the Georgia election-related prosecution in which he and 14 co-defendants have pleaded not guilty to charges involving efforts to overturn his 2020 loss in Georgia.

The case has been on hold while a Georgia appeals court considers whether Fulton County District Attorney Fani Willis, the lead prosecutor, should be disqualified over alleged misconduct tied to a romantic relationship she had with a former top deputy. Appellate arguments are scheduled for December.

“The Georgia case could have the same kinds of immunity issues as the federal election interference case, if Georgia gets the case back on track,” Syracuse University law professor Gregory Germain said.

The Georgia case is “another way the immunity issue could go back to the Supreme Court,” Schwinn added.

The case could be affected if Trump wins in November.

“The state prosecution against Trump in Fulton County would likely have to be held until Trump left office for further proceedings. However, the proceedings against the indicted co-conspirators would move on without him,” Kreis said.

Trump is appealing to the New York-based 2nd U.S. Circuit Court of Appeals the two judgments against him in lawsuits by Carroll — one $5 million and the other $83.3 million. One appeal already has been argued. Trump’s lawyer has filed his written brief with the 2nd Circuit in the other.

Trump also is appealing the nearly half-billion dollar judgment against him over real estate business practices in the civil fraud case brought by New York state Attorney General Letitia James.

“I would expect the appeal to proceed,” Germain said. “But there are so many problems with that case that a reversal seems very likely.”