Justice Department officials plan to pursue the criminal cases against Donald Trump past Election Day even if he wins, under the belief that department rules against charging or prosecuting a sitting president would not kick in until Inauguration Day in January, according to people familiar with the discussions.
That approach may become more consequential given this week’s Supreme Court ruling on presidential immunity, which probably will lead to further delays to Trump’s election interference trial in D.C. and has already affected one of his state cases.
Senior law enforcement officials have long viewed the two federal indictments against Trump — the 45th president and the presumptive Republican nominee in this year’s election — as operating with potential time constraints. That’s because of long-standing Justice Department policy that officials cannot criminally charge a sitting president.
Lawyers in the department do not believe the policy bars them from proceeding against a president-elect, however, according to the people familiar with the discussions, who spoke on thecondition of anonymity to describe internal deliberations.
The plan to continue filing motions, seeking court hearings, and potentially conducting a trial between Election Day and Inauguration Day underscores the highly unusual nature of prosecuting not just a former president, but also possibly a future one. In the months after winning election, a president-elect assumes some of the trappings of the office, such as more security and high-level briefings, but that person is not the commander in chief.