With no historic precedent for how to handle an incoming president already under indictment, legal experts have been divided on whether a state prosecution could continue if and when Trump is inaugurated. But skepticism spiked after this week’s blockbuster Supreme Court decision, in which the conservative majority ruled that presidents are immune from prosecution for their official acts. That ruling could sink parts of the Fulton County case.
But if Trump wins and shuts down the two federal prosecutions against him, the Georgia case could be the only one left standing, whether Trump is tried in 2025 or 2029.
Continuing the Fulton prosecution after Trump is sworn in “was never going to happen in the first place, but if I had lingering doubts they have been sufficiently resolved for me,” said Anthony Michael Kreis, a Georgia State University law professor who specializes in constitutional law. “There’s no way this court would let that go forward.”
Others have argued that there is no law on the books precluding Willis from moving forward on what would likely be a slimmed down case against Trump. Even so, proponents acknowledged that recent decisions from this court make it less likely that justices would ultimately side with the DA.
“It looks like this Supreme Court is prepared to bend over backwards to defend principles of presidential authority in quite problematic ways, and so there’s really no telling what they would do with this,” said University of Pennsylvania law professor Claire Finkelstein.
A Willis spokesman declined to comment on her strategy. But allies of the DA, a veteran prosecutor known for her drive and hard-headedness, expect she will try to push forward. They suggested it would take nothing short of a court order to stop her.
“I don’t think in any way she’ll be deterred by the results of an election,” said Gabe Banks, a defense attorney and former colleague and whose wife works for Willis. “And frankly she hasn’t been deterred thus far… So I think in order for the prosecution to stop a court would have to intervene.”
A four-year pause?
Trump currently faces 10 felony charges in Georgia. He stands indicted for allegedly overseeing a racketeering conspiracy to overturn Georgia’s 2020 election results and organizing GOP officials to cast electoral college votes for him in swing states won by Biden, among other charges.
But the bulk of the criminal case in Fulton remains bottled up in a pre-trial appeal as a group of defendants seeks to have Willis removed for the romantic relationship she had with the outside attorney she brought in to manage the prosecution.
That appeal is expected to pause the case until next year.
Trump’s legal team is already arguing that if the Republican wins in November, Willis, if she’s allowed to stay on the case, will not be able to prosecute him until his term is up in 2029.
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Credit: TNS
“I believe that the (Constitution’s) supremacy clause and his duties as president of the United States — this trial would not take place at all until after his term in office,” his lead Atlanta attorney, Steve Sadow, argued during a hearing last year. He declined to comment for this story.
There is little case law governing how to handle presidents accused of breaking the law, especially not in criminal cases.
In two cases involving Richard Nixon, the Supreme Court ruled that executive privilege didn’t protect the president from complying with a subpoena seeking tapes of his Oval Office conversations. It also said presidents were immune from civil lawsuits seeking damages as a result of their White House actions.
In 1997, the high court allowed a civil case accusing then-President Bill Clinton of sexual harassment to move forward even though he was in office, rejecting arguments that it would distract him from his presidential duties.
Key DOJ guidance
Perhaps the most relevant language on the books is a pair of Justice Department policy memos from 1973 and 2000. Written by government lawyers amid Nixon’s legal struggles and affirmed after Clinton’s, the documents conclude that a sitting president cannot be indicted on criminal charges while in office. They reason that such cases would prove to be too big a distraction for a commander-in-chief.
The documents don’t have the force of law and are akin to guidance for federal prosecutors. Still, some legal experts say they are significant when it comes to Trump, who was indicted in Fulton last summer alongside 18 others.
Saikrishna Prakash, a University of Virginia Law professor, noted that the courts have for decades been recognizing and carving out new immunities for presidents. He believes this court would interpret the Justice Department guidance, even if it’s focused on sitting presidents, to extend to an incoming president.
“The point is, if you say a sitting president can’t be prosecuted, the answer can’t turn on whether the prosecution had already begun before he got there,” said Prakash.
Others view the Justice Department guidance differently.
Kim Wehle, a law professor at the University of Baltimore, noted that the DOJ memos were “commissioned by presidents to protect themselves against an ongoing investigation.”
“The bottom line is it’s meaningless as a matter of a source of law,” said Wehle, who has written extensively about presidential immunity. “Law is a rule that binds people. It either comes from a legislature… or it comes from a judicial decision. It could come from a regulation, but that regulation would have to be passed pursuant to authority granted by the legislature. And this is just an internal memo.”
Finkelstein said the memos aren’t applicable to Willis because they cover federal, not state, prosecutions and don’t address how to handle presidents who have pending criminal matters against them.
She said that while Willis will have to work harder to keep her case against Trump intact under the new Supreme Court ruling, “the fact that he becomes president should not interfere” with taking him to trial.
‘This court will stop her’
The DOJ memos were referenced in the justices’ majority opinion issued Monday on presidential immunity. In a footnote, the conservative jurists cited the 2000 memo, which some legal experts saw akin to the justices co-signing the department’s conclusions.
“They noted that the memo was grounded in a constitutional requirement, and they seemed to me to be citing it approvingly,” said Brian Kalt, a professor at Michigan State University’s College of Law, who added that “they certainly could have been clearer.”
Finkelstein said the reference was “dicta,” akin to a suggestion or an observation.
Some of the DA’s closest confidants believe Willis has the law on her side.
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Credit: TNS
“She is someone that values deeply the rule of law… she’s only going to go forward if she believes that’s what the law requires of her,” said Charlie Bailey, a former colleague whose wife works in the DA’s office. “And the truth is, she’s right on that. The state of the law is there is no limitation.”
But Bailey acknowledged that the current Supreme Court may not be sympathetic to his friend’s side.
The University of Virginia’s Prakash was a little more blunt.
“If she tries this court will stop her,” said Prakash, who has in his own work argued that presidents don’t have immunity.
‘Massive political headache’
If Willis opts to pause her prosecution of Trump — or if a court forces her to — she can still move forward with prosecuting his 14 remaining case defendants. Among them are some top former aides and advisers of the former president, including onetime White House Chief of Staff Mark Meadows and former New York City Mayor Rudy Giuliani.
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Credit: TNS
Prosecuting that group could still have a significant effect on Trump and his presidency. Unlike in Trump’s Manhattan trial, Fulton Superior Court allows cameras in the courtroom, which would enable the public to livestream proceedings from Judge Scott McAfee’s courtroom — and keep close tabs on any damaging evidence prosecutors may have accumulated.
“To try to be president, but also have all your dirty laundry aired out in Fulton County Superior Court and there’s nothing you can do about it because you can’t pardon (co-defendants) and you can’t force a dismissal” of the case, said Kreis. “That’s going to be a massive political headache.”
No matter what happens, the Fulton case is likely to stick with Trump for years.
Unlike the two cases brought by Justice Department special counsel Jack Smith against Trump, the Fulton prosecution could not be ordered stopped after the Republican regains the presidency. Nor could Trump or a future Republican president pardon him from state charges if he’s convicted.
