For Trump, It’s Either The White House Or The Big House

WASHINGTON ― For Donald Trump, Tuesday’s election has come to this: It’s either the White House or the Big House.
If he wins, the coup-attempting former president, already a convicted criminal, will be able to postpone his Georgia and New York state prosecutions until he is no longer in office. As for his two federal cases, he would be able to make them disappear forever by simply ordering his attorney general to dismiss them.
“Those will be dismissed on Jan. 20. Both of them,” said Ty Cobb, a former Trump White House lawyer and onetime federal prosecutor who thinks his old boss deserves prison time. “There’s a compelling interest for the country to deter this treasonous bullshit and the mishandling of sensitive information.”
Trump himself confirmed he would end the federal prosecutions by firing special counsel Jack Smith in an interview last month with pro-Trump radio host Hugh Hewitt. “It’s so easy — I would fire him within two seconds,” Trump said. Smith has headed the election interference and classified documents investigations.
The New York and Georgia cases, meanwhile, would at best go into hibernation, lawyers said, because courts have ruled that presidents must have the ability to carry out their duties under the Constitution, notwithstanding state legal cases.
“The state cases, because of the supremacy clause, nothing much will occur,” said Karen Agnifilio, a former prosecutor in Manhattan. “He can be sentenced in New York state, but he will not get anything that bleeds into his presidency. So maybe community service? A fine? Nothing?”
A Trump victory over Democratic Vice President Kamala Harris would mark the first time in American history that voters have put a literal criminal into office. Among former presidents, only Richard Nixon even came close to facing charges for his attempt to cheat in the 1972 presidential election and his subsequent attempts to cover it up. He was preemptively pardoned by newly sworn-in Gerald Ford days after Nixon resigned from office in 1974.
Trump, in contrast, already faces three active criminal cases against him: in state court in Georgia, for his attempt to overturn his 2020 election loss there; in federal court in Washington, D.C., for his actions leading up to and during his Jan. 6, 2021, coup attempt; and in New York state court, for falsifying business records to hide a $130,000 hush money payment to a porn star days ahead of the 2016 election. There was a second federal prosecution, in South Florida based on Trump’s refusal to turn over secret documents he took with him to his Palm Beach country club upon leaving the White House, that was dismissed by U.S. District Judge Aileen Cannon. Smith is appealing to have those charges reinstated.
The New York case would be his most immediate threat, should he lose. A New York City jury in May found him guilty on every count. Sentencing is now set for Nov. 26.
Though it is a white-collar crime and Trump is still legally a first-time offender, Judge Juan Merchan can consider Trump’s lack of remorse, the seriousness of the crime ― intended to sway the 2016 presidential election ― as well as Trump’s multiple violations of Merchan’s gag order forbidding the former president from attacking witnesses and court officers in the case.
“Trump was convicted on 34 felony counts and should be treated like any other American. He should be sentenced as scheduled,” said Norm Eisen, a former lawyer in the Barack Obama White House who later worked for the U.S. House during Trump’s first impeachment for trying to extort Ukrainian authorities.
Under New York guidelines, Trump could face 16 months to four years in prison at his sentencing, but Merchan will almost certainly allow Trump to remain free until he has exhausted his appeals.
The Georgia case, in which Trump and multiple co-defendants have been indicted on a variety of charges, including racketeering and conspiracy, is currently bogged down in pre-trial motions. If Trump wins the election, he would likely get a stay of proceedings until he is no longer in office. If he loses, the cases probably would not get to trial for a year, at least.
Both the Georgia case and the two federal cases, unlike the New York conviction, bring with them the possibility of substantial prison time if he is convicted on the most serious charges.
The racketeering charge in Georgia, for example, carries a minimum five-year sentence, while the conspiracy charges in the federal case are punishable by a decade or more.
Cobb says that if Trump loses, the Jan. 6 case could come to trial by late 2025 or early 2026, depending on how quickly the U.S. Supreme Court rules on the inevitable appeal Trump will make arguing he is immune even under the revised indictment in that case. The high court this summer ruled that a president is immune from prosecution for all “official” acts, which led Smith to bring a superseding indictment that dropped some allegations regarding Trump’s demands of his own Department of Justice for help in overturning the 2020 election.
The federal prosecution in South Florida is currently before the U.S. Court of Appeals for the 11th Circuit. That court previously overruled and strongly criticized Cannon for a ruling that benefited Trump.
Cobb said that in both federal prosecutions, Trump would reasonably get six to nine years in prison under the sentencing guidelines if he’s convicted.
Other news outlets have retreated behind paywalls. At HuffPost, we believe journalism should be free for everyone.
Would you help us provide essential information to our readers during this critical time? We can’t do it without you.
Can’t afford to contribute? Support HuffPost by creating a free account and log in while you read.
You’ve supported HuffPost before, and we’ll be honest — we could use your help again. We view our mission to provide free, fair news as critically important in this crucial moment, and we can’t do it without you.
Whether you give once or many more times, we appreciate your contribution to keeping our journalism free for all.
You’ve supported HuffPost before, and we’ll be honest — we could use your help again. We view our mission to provide free, fair news as critically important in this crucial moment, and we can’t do it without you.
Whether you give just one more time or sign up again to contribute regularly, we appreciate you playing a part in keeping our journalism free for all.
Already contributed? Log in to hide these messages.
“He will go to jail, assuming three things: One, he doesn’t win. Two, he lives long enough. And three, she doesn’t pardon him.”
Cobb said it would be good for the country for Harris to do so, making him a non-issue rather than keeping him in the national headlines for years to come. It would also be good for the Republican Party, he said, which could move past Trump and return to some level of normalcy.
“The reality is that without Trump, the Republicans would have 60 senators and 240 members of the House,” he said.
It’s unclear whether Harris, once a prosecutor herself and then the elected attorney general of California, would entertain that idea were she to win. “I’m not going to get into those hypotheticals,” she told NBC News when asked about it last month.