If Trump wins, would Jack Smith continue to prosecute him until the oath of office is taken?

The period between Election Day and Inauguration Day could be marked by an escalating confrontation between President Trump and Special Counsel Jack Smith. A prison sentence for the possible future president could also upend the transition.

The prosecutor and the 45th president both appear to be caught in a posture of defiance. Trump has said he would fire Mr. Smith “within two seconds” of taking his oath of office on January 20. The special counsel has indicated that he will continue to pursue the Mar-a-Lago and Jan. 6 cases as long as he can.

Mr. Smith, who pushed for Mr. Trump to be prosecuted before the election, appears to be planning to prosecute him until he is asked to resign. CNN reports that “more than half a dozen people close to the special counsel's office or other senior Justice Department officials believe Smith doesn't want to close up shop until he's asked to do so or ousted by Trump.”

A victory for Trump would give him a leadership position in the criminal cases brought against him. Justice Department guidelines stipulate that “the impeachment or prosecution of a sitting president would unconstitutionally undermine the ability of the executive branch to carry out its constitutionally assigned duties.” The Supreme Court in Trump vs. the United States expressed vigilance against interference with the “unrivaled gravity and breadth” of the president’s duties.

These guidelines were first issued in 1973 during the legal prosecution of President Nixon. In the decades that followed, this was confirmed again and again, with the Office of Legal Counsel arguing that “impeachment is the only appropriate way to deal with a president while in office.”

That means that even if Mr. Smith managed to keep his job, the cases he filed would likely be frozen until at least 2029.

However, the Justice Department has never had the opportunity to consider whether the ban on prosecuting a sitting president extends to a president-elect.

Trump has argued to Judge Tanya Chutkan in the election interference case that his impeachment as a candidate impinges on what Justice Antonin Scalia once called “the president's audacity.” Judge Chutkan has ruled that Trump's candidacy does not confer any “legally cognizable” privileges. However, an elected president could certainly make a stronger claim for protection.

If the 45th president is successful on Tuesday, he would soon have the power to appoint an attorney general who could then fire Mr. Smith – or try to. Special prosecutor rules require “good cause” to fire a prosecutor like Mr. Smith. The moment Trump takes the oath of office, he would also be given the pardon power and would thus have “the power to grant reparations and pardons for offenses against the United States.”

This grant of power – the court in Trump It is under the “final and exclusive” authority of the president and is therefore entitled to “absolute” immunity – would not take effect until January 20th. Mr. Smith's trial before Judge Chutkan and the 11th U.S. Circuit Court of Appeals could drag on for months until Trump enters the White House. The final decision on whether to advance or withdraw during this transition period would likely be made by Attorney General Garland or President Biden.

Even if Trump triumphs at the ballot box, Manhattan Judge Juan Merchan will issue two rulings later this month that could upend the transition period. First, he will decide whether the Supreme Court's finding that presidential official actions are presumptively immune should affect Trump's 34 state convictions, which District Attorney Alvin Bragg secured. Then he should impose Trump's punishment, which could include prison time.

Trump would likely appeal his ruling immediately and could be free while this request for review climbs the Empire State's appeal ladder. However, he could not expunge it through the pardon power because state crimes are not, at least according to long tradition, “crimes against the United States.” Still, a Trump victory against Vice President Harris could also shake up the case, which centers on adult film star Stephanie Clifford, known as Stormy Daniels.

Judge Merchan, who has been skeptical of Trump, could be anticipating a possible election victory when the verdict is announced. This order was originally planned for September, but was postponed by the lawyer. He might calculate that if Trump were to win the presidency again, there would be little chance that Trump would ever see the inside of a prison cell. This would likely require intervention by the Supreme Court, which could invoke the Constitution's Supremacy Clause to restrain New York's hand.

This section of parchment dictates that federal law triumphs when federal and state laws conflict. The Nine could anticipate that the Constitution's command that the president “shall see that the laws be faithfully executed” could be nullified by putting a president – or a president-elect – behind bars.