Donald Trump’s victory means he is likely to name a U.S. attorney general who will halt the two federal prosecutions he is facing.
That means Fulton County’s election interference case could be the only criminal case left standing. And it will likely will be put on hold until at least 2029.
Fulton County District Attorney Fani Willis, who won reelection to a second term Tuesday, has not directly addressed the question of what she will do with the case against Trump should he return to the White House. But many legal experts believe even if the Democrat moves forward she will ultimately be stymied by the U.S. Supreme Court.
There is no precedent for how to handle an incoming president charged with crimes — no incoming commander-in-chief in American history has entered the Oval Office while under indictment.
The Republican currently faces eight felonies in Georgia, connected with his efforts to overturn the results of the state’s 2020 election. A trial judge struck down a handful of the original 13 counts lodged against him.
‘This court will stop her’
Legal experts have been divided on whether a state prosecution could continue after Trump is inaugurated Jan. 20. But even observers who believe there’s no law on the books precluding Willis from acting acknowledge the Supreme Court, may put a halt to it. They cite the high court’s current makeup and its July ruling that concluded that presidents are immune from prosecution for their official acts, would block the DA from moving forward while Trump is in office.
“If she tries this court will stop her,” University of Virginia Law Professor Saikrishna Prakash told The Atlanta Journal-Constitution.
Willis faces a more immediate challenge Dec. 5. That’s when the Georgia Court of Appeals considers a push from Trump and eight other defendants in the election interference case to remove Willis and her office from the prosecution due to the DA’s onetime romantic relationship with former deputy Nathan Wade.
The court’s decision, due by March, is expected to be appealed by the losing side to the Georgia Supreme Court, which will create more delay.
Should Willis be able to maintain control of the case, the Democrat must then decide whether to temporarily shelve her efforts against Trump — or trudge forward into what will almost certainly become a constitutional fight.
A Willis spokesman declined to comment. But when asked about the issue in October Willis told reporters she would “continue to prosecute every single case in my office.”
Credit: Ben Gray for the Atlanta Journal-Constitution
Credit: Ben Gray for the Atlanta Journal-Constitution
Some of Willis’ allies have previously suggested it would take nothing short of a court order to stop her from prosecuting Trump.
“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, this summer. “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.”
Steve Sadow, Trump’s lead Atlanta attorney, previously argued that Willis won’t have the authority to prosecute his client once he’s in the White House until his term is up in 2029.
“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,” Sadow argued in late 2023.
Once he’s sworn back into the White House, Trump is expected to immediately fire Jack Smith, the Justice Department special counsel who quarterbacked two cases against Trump involving the riots at the Capitol on Jan. 6 and his retention of classified documents after leaving office. But he does not have the same authority to do so with the Fulton case, since it is state and not federal.
For federal cases, the Justice Department has issued guidance stating that a sitting president cannot be indicted on criminal charges while in office, to avoid distracting a commander-in-chief’s job of running the country.
15 remaining defendants
Even if Willis opts to pause her prosecution of Trump — or if a court forces her to — she can still move forward with the racketeering case against his remaining defendants. Among them are former White House Chief of Staff Mark Meadows and ex-New York City Mayor Rudy Giuliani.
Prosecuting that group could still have a significant effect on Trump and his presidency, Georgia State University Law Professor Anthony Michael Kreis previously told the AJC. The trial judge overseeing the case, Fulton Superior Court Judge Scott McAfee, livestreams his court proceedings, which means the nation could watch the trial unfold in real time.
“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.”
Still to be resolved is the scheduled Nov. 26 sentencing of Trump in the hush-money case in Manhattan, where he was convicted of 34 felony counts. Before that happens, Judge Juan Merchan has indicated he will issue a ruling Nov. 12 on Trump’s motion to dismiss the convictions in light of the Supreme Court’s decision on presidential immunity.
