There’s no gentle way to put this, so let’s be blunt: The four criminal cases against Donald Trump are effectively over.

Prosecutors can still take steps to memorialize their findings in the history books and as a warning to the American public. But Trump will not face another criminal trial or go to prison. He gambled his freedom interests by taking back the presidency – a stunning all-or-nothing gamble – and he won.

Let’s start with the two federal cases. Trump has already announcement that he will fire special counsel Jack Smith “within two seconds,” and Smith would have discussed within the DOJ its plans to close the cases. There is an academic debate to be had over whether the president has the constitutional authority to fire the special counsel. Federal regulations provide that the Attorney General may remove a special advocate, but that the competitor “unitary executive“The theory is that the president is not just the head of the executive branch – he East the executive branch and can do essentially whatever he wants there. Either way, Trump has a simple solution: He will appoint an attorney general to do his dirty work and fire the special prosecutor and cases himself if necessary.

Smith faces another structural obstacle, beyond Trump’s promise to fire him. For a long time Department of Justice Policy prohibits impeachment and prosecution of the sitting president. We have never before encountered a scenario in which the subject of an investigation – or in this case, an actual indictment – ​​would have become the president in office during the affair. But here we are. And Smith appears to recognize that, whether he is fired or not, his case will have to end when Trump is sworn in on January 20.

Smith still has two and a half months on the job, but he won’t have a significant opportunity to do much in the courtroom between now and Inauguration Day. Both of his cases are stuck in appellate purgatory; the January 6 case is still mired in dispute over the extent of Trump’s immunityand the classified documents affair was rejected simply because the district judge ruled that the entire special counsel scheme was unconstitutional. Trump will be back in office long before any of these issues are fully resolved.

But Smith still has an opportunity to make his case, at least on paper. Under the aforementioned regulations, a special counsel must prepare a final report outlining the findings of his or her investigation and decisions to prosecute or decline. Usually, a special counsel would not write the report until the very end of his case, ideally after the trial. But Smith can reasonably decide – based on Trump’s public declaration of intent to end both cases and the Justice Department’s policy against prosecution of the sitting president – ​​that it is appropriate to draft the report now. It’s not clear whether we will learn much that is revelatory or new; Smith has already provided detailed indictments in both cases and an exhaustive 165-page account of his testimony in the 2020 election. But if he wants to create documents officially laying out his findings in full, he will have the opportunity to do so before the end of his mandate.

If this seems like a thin pass to anyone hoping to get a full examination of the allegations through a trial, it is. Some criticize Trump for his delaying strategy. But it’s like an NBA coach blaming his opponent for trying to block all of his team’s shots; This is how the game is played. With Trump’s personal liberty at stake, his lawyers raised constitutional arguments that any semi-competent defense attorney would raise — and they won. This is not a criminal act, and it is not their “fault” that these cases will never go to trial. They did their job.

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If you’re looking for blame, consider this: “Each day that passes makes a possible federal prosecution of Trump less likely and more burdensome on the Justice Department if it occurs… Debate will surely rage over whether AG Merrick Garland has set her sights on Trump in a meaningful and pragmatic way. One day we will know. Whatever happens, the delay in reaching a resolution is counterproductive and inexcusable. » It’s something I wrote in May 2022 – six months before Garland named Smith and a year and three months before the DOJ finally decided to charge him. It’s no surprise that time is up.

Then we have the two cases in the states of New York and Georgia. We’ve seen many surreal courthouse scenarios in recent years, and we’re just weeks away from a historic event: the president-elect’s criminal sentencing in Manhattan on November 26. would have will ask the judge to overturn the conviction, and they have offered him various legal escape routes so that this doesn’t happen at all. If that happens, it will be a 50-50 split on whether the judge will sentence Trump to prison. But even if he does, it will be purely ceremonial. There is no way the president-elect would be incarcerated during the transition period or his presidency, and a normal defendant in Trump’s position would likely be released on bail pending his appeal (i.e. the right to appeal before to serve a sentence).

Finally, there is the Fulton County District Attorney’s election interference case of 2020. This one is already on the verge of collapsing under its own weight. The trial judge thrown away five of the 13 initial accusations against Trump. And a Georgia appeals court is currently reviewing prosecutor Fani Willis’ alleged conflict of interest (arising from her relationship with former lead prosecutor Nathan Wade) and prosecutorial misconduct (due to his inflammatory out-of-court statements about the case, that the the trial judge called “legally inappropriate”). The signs are worrying for the prosecutor.

Once again, we face a thorny constitutional question: Can legal action be taken against a sitting president? Again, watch for intellectually stimulating legal arguments presented by brilliant academic minds. But I’ll end the suspense: there’s no way. If New York state authorities attempt to imprison the sitting president, or if Georgia courts attempt to bring him to justice, federal courts will block that move under the law. Supremacy clauseor the lesser-known You-Must-Be-Kidding-Me clause. Our executive branch simply cannot function and cannot effectively enforce the law of the land with the commander in chief held in court or behind bars – on state charges, no less.

Theoretically, both cases could be suspended until the end of Trump’s term in January 2029, then resumed. But Trump would argue that such a delay would infringe on his right to a speedy trial (even if the delay is due to his own status as president). And again we have to consider the practicalities. Will we really see state-level prosecutors (whoever they are in four years) attempting to imprison an 82-year-old, two-term former president for conduct that occurred 13 years ago (as in the matter of silence)?

We will have plenty of time to think about the meaning of it all, and indeed, it is difficult to understand that Trump is entirely failing at anything he has done. But a close look at the practicalities of the prosecution of the former and future president shows that this outcome was always in play. It turns out that in our courts, harsh political reality tends to trump noble aspirations.

This article will also appear in the free version COFFEE Brief bulletin. You can find more analysis on law and politics by Elie Honig, Preet Bharara, Joyce Vance and other CAFE contributors at café.com.