������, Professor of Law, ���ϲ����� College of Law.

Donald Trump’s legal woes have been the center of international attention throughout this 2024 presidential election year. In less than two months before the Presidential election, here is a summary of where all those cases currently stand.

The E. Jean Carroll Defamation Case.�� Trump’s year of litigation started in January with author E. Jean Carroll recovering  an $83.3 million judgment for defamation against Trump for accusing Carroll of lying when she claimed publicly in 2019 that Trump had sexually assaulted her in a department store dressing room more than 20 years earlier, in 1995 or 1996.�� Trump posted a bond to obtain a stay while he appeals the judgment.

The NY Attorney General Financial Statement Fraud Case.�� In February, New York Attorney General Letitia James’ civil fraud case against Trump for overstating the current market value of his properties in the personal financial statements he had submitted to lenders and insurance companies, came to trial without a jury before Judge Arthur Engeron.�� Normally, civil fraud requires a plaintiff to prove that a victim believed and relied on the truth of the statements, and suffered damages as a result.�� But the Attorney General successfully argued that a special anti-fraud statute, New York Executive Law § 63(12), allows her to recover disgorgement of benefits received without showing that anyone relied on or was harmed by the false statements.�� Judge Arthur Engeron entered a judgment against Trump in February for $354 million in disgorgement, plus interest, which would have required him to post a $464 million bond to obtain a stay pending appeal.�� The appellate division allowed Trump to post a reduced bond of $175 million to stay enforcement of the judgment pending appeal.

The Georgia Election Interference Case.�� On June 5, the Georgia Court of Appeals issued an order staying District Attorney Fani Willis’s election interference case against Trump to consider Trump’s motion to disqualify the District Attorney for having an undisclosed relationship with her special prosecutor, Nathan Wade.�� The trial judge, Scott McAffee, had previously allowed the case to continue if Nathan Wade resigned to prevent the appearance of impropriety.�� The defendants appealed McAffee’s well reasoned order, and the case has been on hold by the appellate court since that time.�� Frankly, I thought McAffee’s opinion was sound, and I never understood why Willis’s relationship with Wade in any way harmed Trump or the other defendants.

The New York Falsified Business Records Case.�� Next came New York District Attorney Alvin Bragg’s convoluted criminal case against Trump for falsifying his business records to hide a $175,000 hush money payment made to Stormy Daniels through Trump’s then attorney Michael Cohen in the waning days of the 2016 election.�� I have .�� On May 30, 2024, the jury found Trump guilty under NYPL § 175.10 of falsifying business records to commit fraud and to conceal another crime, although the jury did not have to indicate who was defrauded or what other crime Trump was trying to conceal.�� Trump was supposed to be sentenced on September 18, but Judge Merchan granted Trump’s request to postpone sentencing until after the election.�� Sentencing is currently scheduled for November 26.

The Federal Cases.�� The two federal court cases brought by Special Counsel Jack Smith are the most serious cases Trump faces, and both cases have been stuck in the mud for months.

The Federal Election Interference Case.�� The federal election interference case before District Judge Tanya Chutkan in Washington DC has been delayed by questions about presidential immunity, and now also by technical issues around special prosecutor Jack Smith appointment.�� These preliminary issues will need to be resolved before the case can proceed on the merits.

On July 1, 2024, the Judge Chutkan’s and the DC Circuit Court’s rulings that Donald Trump, as a former president, had no immunity from prosecution.

Frankly, I expected that the Supreme Court would reverse those decisions, and recognize that a president has immunity from criminal prosecution for “core” presidential activities.�� In fact, at the hearing before the Supreme Court, both the government and Trump’s lawyers agreed that an ex president is immune from prosecution for “official” presidential matters, and that there is no immunity for “private” matters.�� Trump’s team even agreed that many matters alleged in Smith’s complaint sounded like “private” not “official” matters.�� The disagreement was on how far “official” matters would go.

I was fairly confident that the Supreme Court would draw the official /private distinction by focusing on the president’s motives – was the president acting to further what he believed to be in the interests of the country, or did he have personal, corrupt, motives to benefit himself at the expense of the country?

I was wrong. Chief Justice Roberts’ majority opinion granted immunity far beyond what the Trump lawyers sought at the hearing. The Court held, first, that a president’s motives are entirely irrelevant to whether his activities are “official” and subject to immunity, or “private” and not subject to immunity.�� Under the Court’s ruling, a president has absolute immunity for anything plausibly connected to his presidential functions, including the most blatant kinds of corruption (such as selling presidential pardons to the highest bidder, or directing the military to assassinate a political rival).�� While it is difficult to imagine that the founders intended the Constitution to provide broad immunity from prosecution to a President Benedict Arnold, who sold out his country for personal gain, that was essentially the Court’s holding.

In an attempt to redraw the official/private distinction, Prosecutor Jack Smith has filed a superseding indictment eliminating the allegations that Trump conspired with his governmental advisors, and has labeled his allegations that Trump conspired with non-governmental advisors to be “private.”  But the labels do not matter.�� Under the Supreme Court’s ruling, Trump is immune from activities that fall within a very broad sphere of presidential activity, even if he had false, improper and corrupt motives for his actions. Given the extremely broad way that the Supreme Court defined “official” activities and rejected motive, it is difficult to see how any of Trump’s attempts to overturn the election would qualify as purely “private” activities.

Nevertheless, Judge Chutkan and the DC Circuit will likely try to read the immunity ruling more narrowly than the Supreme Court wrote it, and allow the case to proceed.�� And if the case does proceed, and Jack Smith is able to prove his allegations that Trump knew he lost the election, knew that his election interference claims were false, and nevertheless sought corrupt motives to overturn the election, then surely a jury would convict him.  But would the case survive another visit to the Supreme Court?  Judge Chutkan set a briefing schedule for the parties to argue the immunity question, with Trump’s reply brief due on October 29.�� Since the case cannot move forward before the court rules on the immunity question, the only thing that could happen before the election is the filing by Jack Smith of evidence that support his arguments that Trump’s activities were “private” and not immune.

The second preliminary issue is whether Jack Smith’s appointment as special prosecutor was constitutional, and if not whether the case should be dismissed.�� As discussed below, Judge Eileen Cannon dismissed the classified documents case against Trump on the grounds that Smith’s appointment was unconstitutional.�� That decision is currently on appeal, and Chutkan stated on the record that she did not find Judge Cannon’s ruling to be “very persuasive.”  Judge Chutkan will likely decide that special prosecutor Jack Smith can proceed with the prosecution, but the process may be delayed further for briefing on that issue, and the ultimate ruling on Judge Cannon’s dismissal could derail the election interference case.

The Classified Documents Case.

In my view, the strongest case against Donald Trump is the classified documents case, which has been stymied at every turn by Judge Eileen Cannon.�� Cannon, a Trump appointee, was previously and harshly , in an unusual unanimous per curium opinion, for improperly exercising equitable jurisdiction over the government’s investigation into the classified documents taken by Trump while leaving office.

After months of slow walking the case, on July 15, 2024, Judge Cannon , determining that the Justice Department regulation under which Special Prosecutor Jack Smith was appointed was unconstitutional under the appointments clause of the Constitution.

The Constitution’s appointments clause requires the President to appoint, and the Senate to confirm, all “Officers of the United States,” except for “inferior Officers” who can be appointed by Officers without Senate approval if the Officers are authorized by law to make the appointment.�� .�� The courts have recognized that mere “officials” and “employees” can be hired without authorizing legislation, presidential appointment, Senate approval, or direct appointment by authorized Officers.�� The distinctions between “Officers,” “Inferior Officers,” “Officials” and “Employees” is not defined in the Constitution, and depends on factors like power, authority, control, and permanency.�� By tradition, cabinet officers and the heads of agencies are Senate-approved “Officers,” including the Attorney General and all 93 US Attorneys running the district offices of the Justice Department.�� The thousands of assistant US Attorneys and all of their staff are inferior officers, officials or employees, and are not appointed by the President or confirmed by the Senate.

The technical issue is whether Special Counsel Jack Smith, appointed by Attorney General Merrick Garland under the Department of Justice’s special counsel regulation, is an “Officer” who must be appointed by the President and confirmed by the Senate, an inferior officer who was appointed by an authorized Officer, or an official or employee who could be hired without Senate approval or congressional authorization.

The legal firepower behind Judge Canon’s decision comes from a law review article by Professors Steven G. Calabresi and Gary Lawson, Why Robert Mueller’s Appointment As Special Counsel Was Unlawful, 95 Notre Dame L. Rev. 87,115–16 (2019).�� Calabresi and Lawson also filed amicus briefs with the Supreme Court in the Trump immunity case, and before Judge Cannon.�� Even though it was not an issue the Supreme Court agreed to hear, Justice Thomas wrote a concurring opinion in the election interference case throwing his support behind questioning Jack Smith’s appointment.

While Calabresi and Lawson’s technical legal arguments, and Judge Cannon’s adoption of those arguments, are plausible, they fly in the face of 50 years of practice, including the Supreme Court’s famous Watergate tapes decision in , brought by special counsel Leon Jaworski, who was appointed under a similar justice department regulation, and whose appointment was not questioned by the Supreme Court.

There are legitimate criticisms of the Special Counsel Regulations.�� If the Justice Department has a conflict of interest, should they be the ones to select the special counsel?  In 1978, after Watergate, Congress created a Special Prosecutor Act, later called the Independent Counsel Act, which allowed majorities of either party within the House or Senate Judiciary Committee to request that the Attorney General appoint a special prosecutor.�� If the Attorney General made the appointment, a three judge panel of appellate judges, rather than the conflicted Attorney General, would select the special prosecutor.�� This process provided some assurance that the special prosecutor would be independent from the conflicted justice department.�� The Supreme Court upheld the Act in , but the Clinton administration did not seek its renewal, preferring instead to control the process through agency regulation, which has created the issue.

There is really no way to know if the current Special Counsel Regulations are constitutional until the Supreme Court rules on them.�� But even if they are not constitutional, there is no reason for dismissing the indictment against Trump.�� Instead, the courts should allow the government to fix the problem by appointing a senate-approved “Officer,” such as the Attorney General or another United States Attorney to supervise the prosecution.�� Professors Calabresi and Lawson have recognized that this is a technical constitutional issue that can be cured by appointing an approved “Officer” to supervise the case.�� The technical defect in Smith’s appointment, which is easily curable, did not prejudice the defendants.�� There is no reason that a United States Attorney appointed to supervise the case now could not ratify Smith’s past work, and allow Smith to proceed with the prosecution under supervision.�� A case prosecuted by Jack Smith under the supervision of the United States Attorney would be like the thousands of cases brought by Assistant United States Attorneys every day in every jurisdiction.

What Happens Next?

The presidential election will take place on November 5, 2024.

If Trump wins the election, there is little doubt that he will cause the federal election interference and classified documents cases to be dismissed, either by appointing loyalists to take over the prosecution in the Justice Department, or by issuing himself a presidential pardon.�� The Supreme Court has signaled in its immunity decision that a self-pardon is within the President’s absolute authority.

However, a presidential pardon only applies to federal crimes, so it would not prevent any of the state prosecutions or cases from continuing.�� It is not clear whether a state prison sentence could be implemented against a sitting president, or how it could be implemented, or whether some sort of federal supremacy would prevent the states from interfering with the activities of an elected president.�� Another constitutional crisis is likely if either of the state criminal cases results in a prison sentence.

If Trump loses the election, he will likely face years of trials and appeals before the legal issues will be finally determined.

Please contact Ellen James Mbuqe, executive director of media relations, via ejmbuqe@syr.edu to arrange interviews with any of these experts.

Political Science Professor  researches and teaches about American politics and political theory, democracy and citizenship. Reeher said the Democrats would need to replace President Biden very soon if they hope to regain ground.

• “In order to give the new candidate enough time to generate enthusiasm, and for the party’s national campaign to adjust its strategy and messaging.��The problem for the Democrats is, how do they avoid what appears to be a somewhat weak national candidacy by Kamala Harris without spilling a lot of internal party blood and creating deep internal divisions.��They’d have to step over a woman of color.��Not a good look for the Democrats.��There are some other prominent Democrats who might be more appealing in a national general election; I just don’t see how the Democrats get to them without creating a lot of chaos and bitterness,” said Reeher.

How can this current unrest in the Democratic Party impact congressional races?

• “If enthusiasm among Democrats drops, either through dissatisfaction with Biden and concerns over his health, or concerns about a Harris presidency, that could lead some potential voters to just sit it out,” said Reeher. “And on the other side, sensing a victory, it could energize the Republicans. So, while the issue at the top of the ticket won’t change a lot of minds about who to choose in a congressional race, it could have impact on who is voting in the first place.”

���ϲ����� Associate Professor of Communications  teaches about political communication in the Newhouse School. His comments below reference Biden’s press conference after attending NATO meeting.

• “It’s hard for me to see how tonight’s press conference at the NATO meeting could reverse Biden’s slide – his campaign clearly hopes it can, since they’ve been promoting it relentlessly. Combined with the Republican National Convention next week, this might be the most critical 10 days in the entire campaign,” said Darr.

• “The murmurs against Biden in the party are becoming a roar, just days after it seemed like Biden had his support secured. Nancy Pelosi’s appearance on Morning Joe on Wednesday very clearly left the door open for Democrats to continue to voice their desire for Biden to step aside,” said Darr.

���ϲ����� political science professor  is the author of “”½��Ի���“.” She studies political psychology and American politics. She has commented that the issue of abortion has been a powerful motivator for voters.

• “In every state where abortion has been on the ballot since the end of Roe v. Wade, abortion access has won with significant majorities even in conservative states. This means that there are voters in places like Kansas, Ohio, and Kentucky who normally support Republican candidates who turned out in off-year elections to support abortion access as a single issue,” said Gadarian.

Donald Trump and his associates were charged with stealing, mishandling, concealing, and lying about classified government documents taken by Trump on his way out of the White House.�� Judge Eileen Cannon dismissed the case, claiming that Special Prosecutor Jack Smith’s appointment was unconstitutional.�� Cannon may well be right in holding that Smith’s appointment was unconstitutional, but she was not right to dismiss the case.

Jack Smith was appointed to be Special Prosecutor by Attorney General Merrick Garland under a Justice Department regulation that has been in effect since 1999, and is substantively identical to regulations that were in effect for decades and during the Nixon Watergate case, which was prosecuted by outside Special Prosecutor Leon Jaworski.�� The Supreme Court affirmed the trial court’s decision in United States v. Nixon, 418 U.S. 683, 694 (1974), noting that Jaworski had been appointed under the DOJ’s regulation.�� No prior court has taken seriously a challenge to a special counsel’s appointment under the special counsel regulations.

In 2019, two law professors published a law review article arguing that it was unconstitutional under the appointments clause for the Attorney General to appoint an outside special counsel, in that case Robert Muller, who had not been confirmed by the Senate.�� See Steven G. Calabresi and Gary Lawson, Why Robert Mueller’s Appointment as Special Counsel was Unlawful, 95 Notre Dame L. Rev. 87, 115–16 (2019).�� These law professors gave Judge Cannon the legal firepower to argue that Jack Smith’s appointment violated the appointments clause of the Constitution.

Is Judge Cannon right that Jack Smith’s appointment was unconstitutional when so many other courts have turned a blind eye to the argument?  Calabresi, Lawson and Cannon have a colorable argument that Smith’s appointment violated the appointments clause of the Constitution.�� The appointments clause requires the President to appoint, and the Senate to confirm, all “Officers of the United States,” except for “inferior Officers” who can be appointed by others without Senate approval if they are authorized by law to make the appointment.�� .��

The Courts have recognized, however, that mere “officials” and “employees” can be hired without authorizing legislation, presidential appointment or Senate approval.�� The distinctions between “Officers,” “Inferior Officers,” “Officials” and “Employees” is not defined in the Constitution, and depends on factors like power, authority, control, and permanency.

Jack Smith claimed to be an “Inferior Officer” appointed under law by Attorney General Garland, who is an Officer appointed by the President and confirmed by the Senate.�� Judge Cannon held that the legislation cited for Smith’s appointment does not apply, and suggests that the broad unsupervised powers given to the Special Counsel might make him a “Superior Officer” who must be appointed by the President and approved by the Senate.�� The legality of Smith’s appointment turns on the uncertain characterization of his role, and the application of the laws authorizing his employment as an “inferior officer.”

So will the appellate courts agree with Judge Cannon’s determination that Smith’s appointment was unconstitutional?  Ultimately, until the Supreme Court decides the case there is no way to know.�� There are good arguments on both sides, and the issues are clouded by vague language and a long and inconsistent practice history.

However, there is good reason to suspect that the current Supreme Court will affirm Judge Cannon’s conclusion that Special Counsel Jack Smith’s appointment was unconstitutional.�� Justice Clarence Thomas asserted as much in his concurrence in the presidential immunity case, , and the breath of that immunity decision suggests that this Court will take an extremely broad view in separation of powers cases, and will likely demand Senate approval for government agents, like the Special Counsel, who are given broad unsupervised authority to exercise government power.

If the Court accepts Judge Cannon’s argument, does that mean all of the prior special counsel cases will now be invalid?    While it would mean that all of those decisions brought by outside special counsel were wrongly decided, it does not mean that those wrongly decided cases are now invalid.�� In general, court decisions that become final (by not being appealed, or by affirmance on appeal) are valid and enforceable, even if the decisions are later proved to have been wrong.�� Court decisions must be attacked on appeal, and can generally not be “collaterally attacked” in another court, even if the decisions were wrong.�� See .

An exception to the rule prohibiting collateral attacks applies when the court lacked jurisdiction to issue the decision, but the problem here is not the court’s lack of jurisdiction but the prosecutor’s lack of authority.�� The jurisdiction exception should not apply.�� So no, Richard Nixon would not be able to get his Watergate tapes back if Judge Cannon’s decision is affirmed.�� Sorry Richard.

But even if Judge Cannon’s reasoning is upheld, her disposition of the case was wrong.�� Dismissal is an extreme remedy that should not be used when well-settled law, that has been reasonably relied on for decades, is overturned, and where the defendants’ rights would not be materially harmed by the technical deficiency that previously occurred.�� Rather than dismissing the case, the Court should allow the Justice Department to fix the technical problem.

Professors Calabresi and Lawson argued in their law review article that the appointments clause defect could be easily cured by appointing another “Officer,” like one of the United States Attorneys, who has been appointed by the President and confirmed by the Senate, to supervise Jack Smith’s work on the case.

If that was done, dismissal would only be appropriate if the defendants were somehow prejudiced by Smith’s wrongful appointment.�� Everything that was done by Jack Smith in the case could have been done by Jack Smith under the supervision of a United States Attorney.�� The technical defect in Smith’s appointment, which was easily curable, did not prejudice the defendants.�� There is no reason that a United States Attorney appointed to supervise the case now could not ratify Smith’s past work, and allow Smith to proceed with the prosecution.�� A case prosecuted by Jack Smith under the supervision of the United States Attorney would be like the thousands of cases brought by Assistant United States Attorneys every day in every jurisdiction.�� Without proof that the defendants were severely prejudiced by this technical appointments issue, the extreme remedy of dismissal was totally unwarranted and should be reversed on appeal.