Trump is the President-elect. So What Will Happen with his Two Federal Prosecutions?

I think the answer is obvious.^ Trump's Attorney General and the Department of Justice will exercise prosecutorial discretion and withdraw these cases. Under the Constitution, both the AG and the DOJ fall under the Executive Branch or Article II. They both have the power to abandon these prosecutions. And, arguably, they also have justification for doing it--a jury of 340 million voters mandated it.

Does that seem unfair? Can Judges do anything about it? No. This is not the first time this issue has arisen. When President Trump abandoned the prosecution of his ally Michael Flynn, D.C. Circuit Judge Emmet G. Sullivan refused to dismiss the case. Instead, he sought to appoint his own prosecutor. On Mandamus,* the Appellate Court (Sullivan's parent court) ordered Sullivan to dismiss because the Judicial branch does not have the power to prosecute. But in lay terms, what does that mean?

Baseball provides a great analogy. Imagine the umpire picked the pitcher. When he called you out on a controversial third strike, would you feel the umpire was impartial to his favorite pitcher?

The Flynn Case is:

In re Flynn, 447 U.S. App. D.C. 227, 961 F.3d 1215 (2020)

^That is, prosecuting your boss is generally frowned upon. Indeed, it is DoJ policy to not prosecute a sitting President. A Sitting President’s Amenability to Indictment and Criminal Prosecution, Memorandum, Dep't of Justice (October 16, 2000).

*Mandamus was vacated En Banc, as premature. In re Flynn, 449 U.S. App. D.C. 322, 973 F.3d 74 (2020). Trump eventually pardoned Flynn, which rendered the controversy moot.

Photo Credit: Andrea Renault?|?Credit:?TNS