Donald Trump’s election as president has provided him a “get out of jail free” card, but it will not protect him from the massive civil liability that he faces.
Never before has the country elected a convicted felon as president. Nor has it elected someone who has been indicted, let alone with several criminal cases pending against him. Yet it now seems unlikely that he will face prison time or even any serious consequences for his crimes.
Trump is certain, upon taking office, to order the dismissal of the two federal criminal cases pending against him. One is the case in Washington, D.C., where he was indicted for his role in attempting to overturn the results of the 2020 presidential election. In July in Trump v. United States, the Supreme Court ruled that Trump could not be prosecuted for official actions taken as president but left open the door to his being prosecuted for other illegal acts that he committed. Special counsel Jack Smith has filed a new indictment to adhere to the Supreme Court’s decision.
The other federal case is in Florida where Trump was indicted for violating federal law in the handling of classified documents. Judge Aileen Cannon declared the appointment of the special counsel unconstitutional, and that ruling is now before the federal court of appeals.
Trump’s strategy was to delay these federal cases as long as possible and it worked. Once he is inaugurated, he has the authority to order the Department of Justice to dismiss the indictments. It seems wrong to allow a president to protect himself from criminal liability in this way, but there seems little doubt that he will have that power on taking office. Indeed, Smith, who is handling these prosecutions, is planning to wind down his work knowing that the cases will be dismissed.
The fate of the criminal cases in state court against Trump is more complicated. A jury in New York convicted Trump of 34 felony counts in authorizing money to be paid to adult film actress Stormy Daniels to keep quiet about their sexual affair and then falsifying business records to hide this so it would not harm his 2016 presidential campaign. Trump has no authority to order the state prosecution to be dismissed and he cannot issue a pardon for state court convictions.
Trump faces a possible prison sentence for these crimes. Each of the 34 convictions carries with it a possible four-year prison sentence, up to a maximum of 20 years in prison. But it is inconceivable that the Supreme Court would allow the imprisonment of a sitting president and permit a state court conviction to thwart the will of the people in the election. In essence, the Supreme Court is likely to say that the election of Trump as president preempts the ability of a state to order him imprisoned.
There is another state court case pending against Trump in Georgia for his alleged attempts to subvert the election results there in 2020. The matter is now pending in the Georgia Court of Appeals for it to hear Trump’s argument that Fulton County District Attorney Fani Willis should be disqualified. But no matter the outcome of that appeal, there is the unresolved question of whether a sitting president can be criminally prosecuted. Even if the Georgia courts and the Supreme Court were to allow the prosecution, Trump would probably not face the possibility of imprisonment.
Although Trump is thus likely to escape criminal punishment, his presidency will not protect him from civil liability. Trump was found by juries liable for sexually abusing writer E. Jean Carroll and to have defamed her about it. The damages in these cases total over $88 million. Also, a New York state court judge found that Trump and his business repeatedly engaged in fraudulent business practices and imposed a $450 million fine. An appeal was recently heard in this case.
The law is clear that a president has no immunity from civil liability for conduct unrelated to actions taken as president. In Clinton v. Jones in 1997, the Supreme Court unanimously ruled that Bill Clinton could be sued for sexual harassment that allegedly occurred when he was the governor of Arkansas. The court said that even a sitting president could be civilly sued for conduct that occurred prior to taking office. Neither the E. Jean Carroll civil suits nor the action for business fraud have the slightest relationship to Trump’s conduct while president.
The core of the rule of law is that no one, not even a president, should be above the law. Yet the effect of electing Trump is that he will face no possible punishments even for crimes for which he has been convicted.
Erwin Chemerinsky is dean of Berkeley School of Law at the University of California.