'One of the largest unresolved questions in American law' could keep Trump out of jail

Donald Trump's lawyers have argued that the former president's trials should be paused until after the election – or even after a potential second term ends in 2029 – and his frontrunner status in the Republican primary is launching politics and the law into "uncharted territory."

Attorneys for the ex-president say the Constitution's Supremacy Clause, which holds that federal law outweighs state law, should allow him to avoid a trial in Georgia if he's re-elected next year, and both Fulton County judge Scott McAfee and federal judge Tanya Chutkan signaled on Friday that those arguments have merit, reported The Messenger.

“It’s one of the largest unresolved questions in American law, whether you can have a criminal process against a sitting president," said Norm Eisen, a former Obama-era White House ethics lawyer. "We don’t know how that would come out.”

Trump's lawyers have argued a Georgia trial would interfere with his duties as president, if he wins in 2024, and while Chutkan denied his motion to dismiss charges in his District of Columbia case, she noted that the Supremacy Clause might prohibit state or local prosecutions.

“Both sides are guessing,” said former Trump White House attorney Ty Cobb. “There’s no precedent for it. It’d have to be resolved by the Supreme Court. There is no clear legal support for either argument.”

Trump has been charged on 91 felony counts in four jurisdictions, and two federal judges and two state judges are trying to coordinate their schedules as prosecutors fight efforts by the former president's legal teams to delay the trials indefinitely in hopes of eventually killing them off during a second term in office.

“A Democrat prosecutor and Trump deranged judges don’t get to decide the presidential election,” said Mike Davis, a former Senate GOP staffer who's been mentioned as a possible Trump attorney general. “The American people get to decide the presidential election. This shows the maliciousness and recklessness of this Democrat lawfare against the leading presidential candidate. There’s no way in hell the American people will let the duly elected president of the United States sit in a jail cell when they want him in the White House.”

Trump could try to pardon himself to get out of his federal prosecutions, which has never been tested, or his attorney general could effectively smother them, and those possibilities magnify the importance in the Georgia election interference case.

“It's uncharted territory,” said Stuart Gerson, a former senior DOJ official from the George H.W. Bush administration and acting attorney general under Bill Clinton.