Former U.S. President Donald Trump is currently awaiting decisions in three of his four ongoing trials, including his Georgia 2020 election interference case. However, final decisions in the Georgia case are delayed since the Georgia Court of Appeals announced on June 5 that Fulton County Superior Court Judge Scott McAfee (10C) cannot consider any motions until after the Court of Appeals decides whether or not to uphold an appeal by Trump’s attorney, Steven Sadow (79L). Sadow is appealing to remove Fulton County District Attorney Fani Willis (96L) from the case.
Georgia State University Assistant Professor of Law Anthony Kreis said this will delay the trial by a “couple months,” with the Court of Appeals hearing tentatively set for Oct. 4.
Trump’s team previously attempted to remove Willis after she disclosed a “personal relationship” with Nathan Wade, who was a Fulton County special prosecutor on the case at the time. McAfee ruled that Willis could remain as the prosecutor on the case on March 15, but Sadow asked on March 18 to appeal the decision.
Wake Forest University School of Law (N.C.) Professor of Practice Ellen Murphy said that it may take several months to receive a decision regarding this appeal. Emory University School of Law Visiting Associate Professor of Practice John Acevedo added that even if the Georgia Court of Appeals makes a decision quickly, selecting a jury may cause delays to the start of the election interference trial. Acevedo pointed to rapper Young Thug’s criminal racketeering case, which took nearly ten months to select a jury, as an example.
Kreis said that an actual trial will likely begin at the beginning or middle of 2025. However, he added that if Trump wins the 2024 presidential election, the former president would likely not be tried until after his second term ends in 2029, while his co-defendants would likely still have their trial in 2025.
“Most scholars and legal practitioners are of the general consensus that the state would not be able to try Donald Trump while he’s in office,” Kreis said. “I don’t know if and to what extent Fani Willis would contest that or fight it or how they would deal with that, but the probability of him going on trial as he is the sitting president is basically zero.”
Acevedo said that “the law isn’t perfectly clear” about whether a sitting president can be prosecuted. He added that if the trial were to begin before Trump’s inauguration, it will likely be allowed to conclude.
Additionally, if a district attorney attempts to prosecute a sitting president, the president’s legal counsel would likely make an appeal for the appellate court to hear the case before the U.S. Supreme Court, according to Acevedo.
“It's such an unsettled issue that this is something very likely that the Supreme Court would take up,” Acevedo said.
On May 30, a jury convicted Trump of 34 counts of falsifying business records, making him the first former U.S. president to be charged with a felony. New York County Supreme Court Justice Juan Merchan will announce Trump’s sentence on July 11. Murphy explained that Merchan will have to balance Trump’s sentence with his multiple violations of gag orders.
Murphy said she would be “surprised” if Trump receives jail time. Acevedo expressed a similar sentiment, saying that it is unlikely Merchan will give Trump a prison sentence, as most defendants convicted of falsifying business records receive probation and a fine, or a combination of the two. He added that a jail sentence poses many logistical difficulties because the United States Secret Service would still be required to protect the former president in jail.
“I can imagine the wardens of New York State are not going to want armed Secret Service agents in their prisons,” Acevedo said. “Most likely, a compromise would have to be reached, but that’s only if any type of incarceration was ordered.”
Kreis noted that Trump will “inevitably” appeal any sentence he receives, adding that the announcement of an appeal would likely come soon after July 11, since the Republican National Convention begins on July 15. This could further delay Trump from serving a sentence, with Murphy explaining that the process of reviewing and likely approving the appeal could take up to two years.
The U.S. Supreme Court is expected to deliver a ruling on whether Trump has presidential immunity in the federal election interference case before the end of June, according to Kreis. He said he has no prediction for what the Supreme Court will decide.
“I think the court is skeptical that a president has complete blanket immunity from any prosecution for anything he ever does while in office,” Kreis said. “But … how it shakes out beyond that, I really don’t know.”
