There’s no nice way to say this, so let’s be direct: The four criminal cases against Donald Trump are effectively over.

Prosecutors can still take steps to memorialize their findings in the history books and as a warning to the American public. But Trump will not face another criminal trial and will not go to prison. He gambled his liberty interests to retake the presidency (an astonishing all-or-nothing gamble) and won.

Let’s start with the two federal cases. Trump has already announced that he will fire special prosecutor Jack Smith “in two seconds,” and Smith reportedly has discussed within the Justice Department its plans to close the cases. There is academic debate over whether the president has constitutional authority to fire the special counsel. Federal regulations provide that the attorney general may fire a special counsel, but the contestant “unitary executiveThe theory holds that the president is not only the head of the executive branch; is the executive branch and can essentially do whatever he wants within it. Either way, Trump has an easy solution: He will appoint an attorney general who will do the dirty work and remove the special counsel and cases himself if necessary.

Smith faces another structural obstacle beyond Trump’s promise to fire him. long-standing Department of Justice Policy prohibits the impeachment and prosecution of the sitting president. Never before have we encountered a scenario where the subject of an investigation (or in this case, an actual accusation) has become the sitting president during the case. But here we are. And Smith apparently recognizes that, whether he is fired or not, his case must end when Trump is sworn in on January 20.

Smith still has two and a half months left on the job, but he won’t have a significant opportunity to do much of substance in the courtroom between now and Inauguration Day. Both cases are stuck in appeal purgatory; The January 6 case is still mired in litigation over the scope of the Trump’s immunityand the case of classified documents has been dismissed altogether because the district judge ruled that the entire special counsel regime is unconstitutional. Trump will be back in office long before any of the issues are fully resolved.

But Smith still has one chance to make his case, at least on paper. Under the aforementioned rules, a special prosecutor must draft a final report setting out the results of his or her investigation and any decisions to prosecute or decline. Normally, a special prosecutor would not write the report until the end of his case, ideally after the trial. But Smith may reasonably decide (based on Trump’s public declaration of intent to end both cases and the Justice Department’s policy against prosecuting the sitting president) that it is appropriate to write the report now. It is not clear whether we would learn much that is insightful or new; Smith has already presented detailed allegations in both cases and an exhaustive 165-page listing of his evidence in the 2020 election case. But if he wants to create documents that formally lay out his findings in full, he will have the opportunity to do so before ends his term.

If this sounds like nonsense to anyone expecting a full investigation of the allegations through a trial, it is. Some blame Trump for his delaying strategy. But that’s like an NBA coach blaming his opponent for trying to block all of his team’s shots; This is how the game is played. With Trump’s personal freedom at stake, his lawyers raised constitutional defenses that any semi-competent defense attorney would raise, and they won. That is not foul play and it is not their “fault” that these cases never go to trial. They did their job.

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If you’re looking to shift blame, consider this: “Each passing day makes a potential federal prosecution of Trump less likely and more strained for the Justice Department if it happens… Debate will surely continue over whether Attorney General Merrick Garland has set its sights significantly and pragmatically on Trump. Someday we will find out. “No matter what happens, the delay in reaching a resolution is counterproductive and inexcusable.” that’s something I wrote in May 2022, six months before Garland named Smith and a year and three months before the Justice Department finally began charging. It should come as no surprise that time was running out.

Then we have the cases from two states in New York and Georgia. We’ve seen many surreal courtroom scenarios in recent years, and we’re weeks away from a historic event: the president-elect’s criminal sentencing in Manhattan on November 26. reportedly He will ask the judge to annul the sentence and they have offered him several legal solutions so that perhaps this does not happen. If it proceeds, it will be a sort of 50-50 toss-up whether the judge will sentence Trump to prison. But even if he does, it will be purely ceremonial. There is no way the president-elect will be locked up during the transition period or his presidency, and a normal defendant in Trump’s position would likely receive bail pending appeal anyway (i.e., the right to file an appeal before to comply with any sentence).

Finally, there is the Fulton County District Attorney’s 2020 election interference case. This one is already on the verge of collapsing under its own weight. The trial judge has discarded five of the original 13 charges against Trump. And a Georgia appeals court is now considering prosecutor Fani Willis’ alleged conflict of interest (arising from her relationship with former top prosecutor Nathan Wade) and the prosecutor’s misconduct (for his inflammatory out-of-court statements about the case, that he first instance judge called “legally inadmissible”). The signs are ominous for the district attorney.

Once again, we are faced with a troubling constitutional question: can a state prosecutor’s office proceed against a sitting president? Once again, be on the lookout for intellectually stimulating legal arguments presented by brilliant academic minds. But I will end the suspense: there is no way. If New York state authorities try to imprison the sitting president, or if the Georgia courts try to put him on trial, the federal courts will block it under the Supremacy clauseor the lesser-known “You’ve got to be kidding me” clause. Our executive branch simply cannot function and cannot effectively enforce the law of the land with the commander in chief tied up in court or behind bars, on state charges no less.

In theory, both state cases could be put on hold until Trump’s term ends in January 2029 and resumed at that time. But Trump would have an argument that such a delay would affect his right to a speedy trial (even if the delay is due to Trump’s own status as president). And again, we must consider the practicalities. Will we really see state-level district attorneys (whoever they may be in four years) attempt to jail an 82-year-old, two-term former president for conduct that occurred 13 years earlier (as in the hush money case)?

We will have a lot of time to reflect on the meaning of all this, and in fact it is difficult to understand that Trump will completely skate over everything he has done. But a close look at the practicalities surrounding the prosecution of the former and future president dictates that this outcome was in play all along. It turns out that in our courts harsh political reality has a way of prevailing over altruistic aspirations.

This article will also appear in the free version. COFFEE Summary information sheet. More analysis on law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors can be found at cafe.com.