The most important date on President Trump’s legal calendar has nothing to do with filing a brief or making a motion: it is the presidential election which will take place on Tuesday, November 5.

The legal fate of the 45th president appears to be decided by the ballot box rather than the jury box. While an election victory won’t be a panacea for all the cases against Trump, beating Vice President Harris is the key to avoiding prison. That would take special counsel Jack Smith’s chances from hopeless to decent.

A Trump victory would upend each of the four criminal cases filed against him. His legal team has long pursued a strategy of delay aimed at postponing trials beyond the election. The vote comes before a verdict has been reached in all but one case. Only District Attorney Alvin Bragg has brought Trump to justice, much less secured a conviction. The sentence will take place next month.

By the time Trump is sworn in on Jan. 20, Mr. Smith’s Jan. 6 and Mar-a-Lago cases against him will be frozen under Justice Department policy that prohibits the prosecution of a sitting president. A memorandum The Attorney General’s opinion holds that “a sitting president is immune from indictment as well as any other criminal proceedings. As for the president, only the House of Representatives has the authority to bring charges of criminal misconduct through the constitutionally sanctioned process of impeachment.

The DOJ explains that all “officers, except the President, are subject to criminal charges and prosecution while still in office; the president is uniquely immune to such a process. This immunity has been claimed as far back as the time of President Jefferson in 1807. The DOJ believes that “criminal proceedings against a sitting president should not extend beyond the point where they could result in such serious physical interference with the office by the President from his official duties that it would amount to incapacity.

This same logic inspired the Supreme Court’s decision last time in Trump v. United States that official presidential acts are presumed immune from prosecution, with some of these acts enjoying “absolute immunity.” Trump already enjoys this protection due to his tenure as the 45th president. Mr. Smith, however, hopes to persuade Justice Tanya Chutkan — and perhaps the Supreme Court — that his election interference case centers on unofficial acts lacking immunity.

A Trump victory, however, would likely short-circuit that effort, which has been gaining momentum since the Supreme Court sent the case back to Justice Chutkan’s courtroom. Once Trump is installed in the White House, he could appoint an attorney general to fire Mr. Smith and order the charges dropped. Although the special counsel may challenge such a decision – “good cause” is required for dismissal – it is difficult to see the cases moving forward without the support that Attorney General Garland has given Mr. Smith.

The Supreme Court in Asset ruled that “the executive branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute” and that the president’s ‘management of the executive branch’ requires that he have ‘unrestricted power’ to dismiss the most important of his subordinates.” » That would seem to rule out any challenge to Trump’s nomination of an attorney general hostile to Mr. Smith.

The Nine also ruled that a president has “conclusive and exclusive” authority over the pardon power for the same reason he holds absolute sway over the DOJ – the Constitution directs that “executive power be vested in a President of the United States of America.” The President “shall also have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The pardon power does not extend to state prosecutions like those of Mr. Bragg in New York or those of prosecutor Fani Willis in Fulton County. If Trump wins, the Supreme Court could freeze these cases, which would be an affront to the Parchment’s Supremacy Clause, which states in part that “the laws of the United States…shall be the supreme law of the land; and the judges of every state shall be bound thereby.

An unanswered question is whether a possible President Trump could exercise the pardon power on himself. During the pleadings at AssetJustice Neil Gorsuch questioned whether granting dubious immunity might prompt “presidents to attempt to pardon themselves.” Justice admitted that “we never answered whether a president could do that.”

The Sun has reported on this issue, and Justice Department counsel in AssetMichael Dreeben, described a future where presidents are free to pardon each other as a “dystopian” future and that such a maneuver “would contradict a fundamental principle of our law that no one should be the judge of his own case.” Trump, as the 47th president, may soon test this foundation.