������, 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.

By , Professor of Law

To request an interview with Professor Germain, please contact Ellen James Mbuqe, executive director of media relations, at ejmbuqe@syr.edu.

Donald Trump’s criminal trial in New York begins today with jury selection.�� The following is a summary and legal analysis of this very complicated case.

District Attorney Alvin Bragg alleges that, shortly before the 2016 presidential election between Donald Trump and Hilary Clinton, Trump made several arrangements to prevent the public disclosure of allegations against him that might negatively affect his election.

First, Trump arranged with American Media, Inc., the publisher of the National Enquirer, to “catch and kill” stories that might be embarrassing to Trump.�� The National Enquirer paid for and killed two potential stories:  one from a doorman who alleged that Trump had fathered a child out of wedlock, which proved to be untrue, and a second from a former Playboy model Karen McDougal, who claimed to have had an affair with Trump during his marriage.

Second, and more importantly, for the actual charges in the indictment, Trump arranged with his then-lawyer and now chief nemesis, Michael Cohen, to pay $130,000 in “hush money” to Stephanie Clifford, known professionally as Stormy Daniels, who is described by Wikipedia as “an American pornographic film actress, director and former stripper,” to prevent her from disclosing a sexual relationship with Trump.

Trump disguised the hush money payments by having Cohen make the payments, and then reimbursing him using business entries that called the payments “attorney fees”.

Trump has never been charged with a crime for making the hush money payments or arranging with AMI to catch and kill stories.�� The underlying charges were investigated by the US Attorney General’s office, and they decided not to bring criminal charges against Trump.

There has been some suggestion that the hush money payments might somehow violate federal election laws, although I have never understood how using one’s own money to pay for the non-disclosure of embarrassing allegations would violate the election laws, which are primarily concerned with the solicitation and use of campaign contributions by third parties.�� Even if the government wanted to charge Trump now for violating the election law in 2016, those charges would likely be barred by the applicable statute of limitations.

The underlying case is somewhat like the criminal charges brought against former presidential candidate John Edwards, who was charged in 2011 with receiving more than $900,000 in illegal campaign contributions from friends in 2007-08 to make hush money payments to disguise his extramarital relationship and child from becoming public.�� The Edwards case involved money from third parties, so the election law connection makes some sense.�� Nevertheless, the jury found Edwards not guilty of violating the campaign finance laws, and the government decided not to further pursue the remaining charges that the jury was unable to decide.�� Ironically, Jack Smith, the current special prosecutor in the federal classified documents and election interference cases, had directed the Edwards prosecution.

Instead of charging Trump with an underlying crime, District Attorney Bragg is charging Trump only with covering up an underlying crime.

NY penal law 175.05 makes it a “class A misdemeanor” to falsify business records with “intent to defraud.” Falsifying business records to commit a fraud becomes a Class E felony “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”  NY Penal Law § 175.10.

District Attorney Bragg’s indictment charges Trump with 34 felony counts, each of which relates to a business record disguising a payment made to Cohen as attorney fees.�� The indictment alleges that Trump disguised the payments with intent to cover up another crime.�� But the indictment does not say what that other crime is.

There are several layers that I believe District Attorney Bragg must show to convict Trump of committing a felony under Penal Law § 175.10.

First, Bragg must show that Trump made the false business records with intent to commit “fraud,” otherwise Trump would not be guilty of a crime at all, because falsifying business records for non-fraudulent purposes is not a crime under the statute.

It is not clear who Bragg believes Trump intended to defraud by falsifying these entries.�� Presumably, Trump was trying to hide the allegations and/or the relationships from his family and/or the public to prevent the disclosure of embarrassing allegations or facts, but traditional “fraud” requires, among other things, showing an intent to receive financial benefits by misleading a victim, and the misrepresentations must cause an actual victim to suffer damages.�� Fortunately for politicians, not all lies, misrepresentations, or nondisclosures constitute “fraud.”

The District Attorney has made public statements suggesting that Trump may have been hiding the payments as attorney fees to commit tax fraud, but neither that nor any other specifics regarding an intent to commit fraud is stated in the indictment.

Second, the District Attorney must show that the reason for Trump’s false entries was to commit or cover up a separate crime, presumably separate from the fraud.�� If the separate crime is the election law violation, Trump would have had to know that the payment was an election law violation, and to have falsified the records to cover it up that crime.�� It seems to me that the election law violation would be stronger, not weaker, by making it look like Cohen was the one making the payments for Trump.�� Disguising the payments through Cohen made it look more like an election law violation by a supporter, not less.��  Or was Trump trying to disguise the payments to prevent his family or the public from knowing about the embarrassing allegations, rather than covering up an independent crime?

I believe the District Attorney must show (1) that the payments were disguised as attorney fees to commit a fraud on someone, (2) that the underlying payments constituted an independent crime, (3) that Trump knew that the underlying payments constituted a crime, and (4) that the reason he covered up the payments was to disguise that crime.�� Those are going to be hard things to prove.

Judge Merchan’s summary of the case for the jury glosses over all of these difficult statutory questions.�� After being unable to get the parties to agree on the language of a statement to be read to the jurors to describe what the case is about, Judge Merchan decided to read the following statement to the jurors to summarize the case:

“The allegations reflect in substance, that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election. Specifically, it is alleged that Donald Trump made or caused false business records to hide the true nature of payments made to Michael Cohen, by characterizing them as payment for legal services rendered pursuant to a retainer agreement. The People allege that in fact, the payments were intended to reimburse Michael Cohen for money he paid to Stephanie Clifford, also known as Stormy Daniels, in the weeks before the presidential election to prevent her from publicly revealing details about a past sexual encounter with Donald Trump.”

Judge Juan Merchan’s statement fails to explain when it is a crime to “unlawfully influence” an election?  Obviously, all politicians attempt to influence voters to vote for them.�� Politicians regularly misstate facts and fail to disclose facts during their campaign.�� The law has never allowed members of the public or the government to bring claims for fraud against politicians who make misleading or even downright false statements; indeed our laws broadly protect campaign speech under the First Amendment.

Neither the Court nor the District Attorney has made it clear who was defrauded, what the independent crime is, or when an attempt to influence voters becomes “unlawful” and constitutes an independent crime.

There is also a question regarding the statute of limitations applicable to these claims.�� The statute of limitations on a misdemeanor in New York is 2 years, and would have expired long ago.�� NY Crim Proc 30.10(2)(c).�� The statute of limitations on “other felonies” is 5 years.�� NY Crim Proc. § 30.10(2)(b).�� The acts occurred in 2016 and 2017, and the District Attorney delayed filing the charges for several years.�� The District Attorney has argued that the statutes of limitations were tolled during COVID, or that they were extended when Trump left the state.�� These issues need to be addressed by the court clearly.

So while there is very strong evidence that Trump created false business record entries to cover up his hush money payments to Stormy Daniels, the District Attorney needs to show multiple difficult elements to establish that the entries were made to commit “fraud,” and for the purpose of covering up a separate crime.

Finally, what is the penalty if Trump is convicted of this Class E felony? He would be subject to a fine of up to $5,000 under NY Pen § 80.1.�� If he received some financial benefit, he might have to disgorge three times the amount of the benefit.�� It is difficult to see how these minor penalties would justify such an expensive investigation and prosecution.

So the goal must be to impose imprisonment.�� For a first time offender, the court could impose a prison term of up to one year under NY Penal law § 70(4), but it would be very unusual to impose prison time for a first time Class E felony, especially where no victim suffered financial harm.

This case is an important test for our legal system.�� District Attorney Alvin Bragg was under intense political pressure to bring these charges, even after his predecessor, Cyrus Vance Jr., decided not to do so.�� Trump is very unpopular in Manhattan, and has acted boorishly and foolishly in verbally attacking parties, judges, court clerks and their families.�� But the law must be applied fairly and evenly to all parties, even those who are locally unpopular, and it is the District Attorney’s responsibility to assure equal treatment under the law.

I believe that the use of our legal system for political purposes will backfire with the electorate.�� Every time a politically motivated case is decided, the polls show Trump becoming more popular.�� Alvin Bragg sits in the chair once occupied by one of my legal heroes, Robert Morgenthau, who refused to use his office for political purposes, and had the courage to admit when his office made mistakes.�� Bragg has a lot to live up to.�� This old case, with all of its legal difficulties, should not have been brought