What to expect if he wins or loses the election

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Special Counsel Jack Smith is expected to make new submissions this week on how to proceed with his two federal criminal cases against former President Donald Trump. But what Trump's case will look like as November approaches will depend heavily on the outcome of the presidential election.

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What you should pay attention to

Prosecutors will urge judges this week to move forward with both criminal cases against Trump in federal court, even as the outcome of the election remains uncertain. Smith is expected to file the government's appeal of the federal documents case on Tuesday, challenging the firing of U.S. District Judge Aileen Cannon. She argues the charges should be thrown out because Smith was improperly appointed. The filing could also be an indication of whether the government will ask the appeals court to remove Cannon from the case if the charges are reinstated, noted former U.S. Attorney Joyce Vance, as the Trump-appointed judge has been criticized for issuing rulings in the ex-president's favor. Attorneys for Smith and Trump will then explain on Friday how they plan to proceed with the federal election case, as the district court case has only just resumed after the Supreme Court narrowed the scope of what Trump can be accused of. A decision is also expected soon in Trump's Manhattan case on whether the sentencing of the former president should be postponed. Trump argues that the sentencing – currently scheduled for September 18 – should be postponed until after the election.

What happens if Trump is sentenced to prison?

It remains to be seen whether Trump will receive a prison sentence in his case in Manhattan, where he was found guilty on 34 counts. But legal experts say it's unlikely — though not impossible — that Trump will receive a prison sentence as a first-time offender. If he is indeed sentenced to prison before he wins the election or is sworn in, there's technically nothing preventing him from serving as president, even if he's still in prison on Inauguration Day. But given the logistical challenges that would pose, it's more likely that Trump's prison sentence will be pushed back until after he leaves office. Trump could also sue for his release from prison, claiming it interferes with his duties as president, notes the New York Times.

Could Trump fire Jack Smith?

Trump has said he wants to fire Smith as special counsel if he is re-elected. This would likely be necessary for a Trump-controlled Justice Department to drop charges against him. A future President Trump would have no direct authority to fire Smith, as special counsels can only be fired by the attorney general. Any attorney general appointed by Trump is expected to be willing to fire Smith, although federal law requires that special counsels, who are supposed to be independent, can only be fired “for misconduct, neglect of duty, incompetence, conflict of interest or other valid reasons.” Smith could challenge his firing in court, although it is not clear whether that would be successful, particularly before the right-leaning Supreme Court. Cannon's ruling – disputed by legal experts – that the special counsel was improperly appointed could give further impetus to the Justice Department under Trump's argument to fire Smith.

Could Trump pardon himself?

Trump cannot have his Manhattan conviction expunged if he wins in November because that case was tried in state court and presidents cannot pardon prosecutors. It is highly unlikely that Trump could be convicted in any of his federal cases before he takes office. But hypothetically, if he were to be, the question of whether presidents can pardon themselves is still open. The Justice Department had already issued a legal memorandum in 1974, shortly before Richard Nixon's resignation, saying presidents could not pardon themselves. But that is not legally binding. If Trump were to try to pardon himself, the dispute would likely ultimately be decided by the Supreme Court.

What are the implications of the Supreme Court’s immunity ruling?

The Supreme Court ruled in July that Trump and other former presidents cannot be criminally charged for their “official acts” while in office, but can be charged for acts outside the scope of their official duties. It remains to be seen what impact this will have on Trump's cases. Trump is trying to avoid conviction in Manhattan by arguing that the verdict against him should be overturned because some of the evidence used in the trial was covered by the court's immunity ruling. Judge Juan Merchan is scheduled to rule on that motion on Sept. 16. In the federal election case, U.S. District Judge Tanya Chutkan must also determine how the immunity ruling affects the scope of the charges before a trial can take place. While Trump's case regarding the federal documents was dismissed, the former president will likely assert immunity claims if the prosecution is reinstated — as he has previously claimed he should enjoy immunity because he “released” documents while in office — and Trump will likely assert immunity in the Georgia case once it moves forward again.

Important background

Trump is the first sitting or former president to be charged. All of the charges against him were filed last year, after he had already left office. The Manhattan case is the only one to go to trial so far, as Trump managed to delay his criminal proceedings before the election. His federal election case was on hold for months while the Supreme Court debated the immunity issue. Cannon delayed a series of rulings in the document process and indefinitely postponed a May trial date before dropping the charges entirely. Prosecutors had also originally sought to bring Trump's Georgia case to trial in August before the dispute over Willis' disqualification – which concerns her romantic relationship with prosecutor Nathan Wade – derailed the case. Trump has pleaded not guilty to all of the charges against him and has widely condemned his criminal proceedings as “witch hunts” designed to harm him in the election.

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