The President-elect is on the verge of beating most, if not all, of the criminal charges against him. What will be the consequences of having brought them in the first place?

A year before Donald Trump became the first former President to be criminally indicted, I expressed my hope, on The New Yorker Radio Hour, that prosecutors would exercise discretion not to pursue indictments against him. That take wasn’t too popular with listeners; he had to be held accountable for wrongdoing, and no person is above the law. Plus, it was crucial that he not become President again. So he was indicted, and, four separate prosecutions and a total of ninety-one criminal charges later, he is on the cusp of beating most or all of his criminal cases, in large part by having won the Presidential election in November. It is worth taking stock, on the eve of Trump’s second term, of not just the demise of the prosecutions but also their more enduring consequences for the institution of the Presidency, the rule of law, and our system of government.

Only two years before the 2024 Presidential election—in which Trump had been expected to run against President Joe Biden—Attorney General Merrick Garland appointed Jack Smith as special counsel, to investigate “efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021”; Smith’s portfolio also included Trump’s handling of classified documents after he left the White House. The fact that it took nearly two years to decide to appoint the special counsel seemed to reflect at least some hesitation within the Justice Department about prosecuting the former President, the political rival of the sitting President—if for no reason other than an appearance of political motivation. (After all, Trump’s first impeachment had involved his asking a foreign head of state, President Volodymyr Zelensky, to investigate Biden and his son Hunter.)

Then came Smith’s federal indictments against Trump, in the classified-documents case and in the election-interference case, in mid-2023. In truth, the indictments seemed somewhat dead on arrival. Anyone familiar with the pace of federal criminal cases, even in ordinary matters, could foresee that the timeline of Smith’s prosecutions, launched less than eighteen months before Election Day, would run concurrently with the Presidential campaign, and that there was little to no chance of the cases’ completion before people began voting. Even in a miracle scenario wherein Trump could be convicted before the election, the possibilities still weren’t promising. If Trump then won the election, it would be implausible to have the Chief Executive perform his duties from prison or other penal confinement; if he lost the election, it would seem as if the prosecutions functionally contributed to that result, casting doubt on the integrity of both law enforcement and the democracy that Trump was accused of undermining. But the most predictable scenario was the one that played out: the federal prosecutions of the Presidential candidate were not close to finished during the election season. Indeed, they became a central part of the Trump campaign’s narrative.

After Trump’s electoral victory, Smith did what he had to do and asked the federal courts in Washington, D.C., and in Florida to dismiss the two cases, consistent with the Justice Department’s established position, dating to the Watergate era, that it is unconstitutional to prosecute a sitting President. Judge Tanya Chutkan dismissed the election-interference case while acknowledging Smith’s position that the criminal immunity of a sitting President ends when he leaves office. In theory, Trump could be re-indicted and prosecuted for the same crimes in four years, but in practice that’s highly unlikely. The statutes of limitations for the charged crimes will have expired by then; Smith’s brief mentioned that a court might decide to pause that clock for four years, but the possibility would have to be litigated. Even if a future Presidential Administration had the desire to re-start these prosecutions, it is possible that Trump would have received a Presidential pardon in the meantime from the next President, as Richard Nixon did from his successor, Gerald Ford. (The idea of a self-pardon is absurd, but no case has declared a self-pardon invalid, because no President has ever attempted one, and we can only hope we won’t have to face that possibility.)

In the classified-documents case, Judge Aileen Cannon had already dismissed the indictments against Trump and two co-defendants earlier this year, based on her conclusion that the appointment of a special counsel was unlawful. Smith had filed an appeal of Cannon’s ruling, but this past week the Eleventh Circuit granted a post-election request by him to end that appeal with respect to the charges against Trump, thereby leaving the indictment of Trump dismissed.

But Smith is still appealing the dismissal of the prosecutions of the two other defendants, Trump’s employees Waltine Nauta and Carlos De Oliveira. So the Eleventh Circuit (and perhaps eventually the Supreme Court) will eventually decide whether Smith was validly appointed. If he wasn’t, it would mean that twenty-five years of investigations by special counsels under four different Presidential Administrations, including those investigating Joe Biden, Hunter Biden, Russian interference in the 2016 election, the origins of the F.B.I. investigation of Russian interference, and the F.B.I.’s handling of Waco, would have been legally unauthorized. And Trump’s promised investigations of his enemies would then have to be conducted even more directly by his Attorney General, without the layer of political distance and independence that a special counsel is supposed to enable.

The two state criminal cases against Trump also seem doomed to go out with a whimper. The prosecution in Georgia, led by the Fulton County district attorney, Fani Willis, alleging election interference—including Trump’s pressuring of Georgia’s secretary of state to reverse its 2020 election results—had been on hold for most of this year, while Trump attempted to disqualify Willis and her office because of her romantic relationship with the prosecutor she’d hired to assist in the case. Having failed to convince the trial judge to dismiss the prosecution on that basis, Trump appealed. But, after he won the election, the court of appeals cancelled the oral arguments that were scheduled for this week.

Even if Willis’s case were to survive the alleged affair, it would additionally need to survive the strictures imposed earlier this year by the Supreme Court’s decision in Trump v. United States, which held that a former President is either absolutely or presumptively immune from prosecution for his official conduct as President, though not immune for his unofficial conduct. Shortly after the Supreme Court’s ruling, Smith had revised his indictment, to eliminate allegations involving Trump’s official acts as President—such as his conversations with Justice Department officials—and to foreground the unofficial nature of his conduct as a Presidential candidate. But, for the case to get anywhere close to a trial, there likely would have been a long slog of litigation regarding whether the acts alleged in the revised indictment—such as pressuring then Vice-President Mike Pence to alter electoral votes—were unofficial or if they could overcome the presumptive immunity for official acts. Now that the federal prosecution of Trump is kaput, it would fall to the Georgia prosecution to assert that its indictment alleging similar conduct related to January 6th is still allowed. But a more basic principle, that a President should not have to defend against criminal charges of any kind while he is sitting, will likely put the kibosh on the prosecution for now.

In the Manhattan District Attorney Alvin Bragg’s prosecution of Trump, under New York law, a trial jury found the former President guilty of thirty-four counts of falsifying business records in connection with hush-money payments to an adult-film star with whom he allegedly had an affair. Trump was supposed to be sentenced this fall, but after the election Judge Juan Merchan indefinitely postponed the sentencing and gave both Trump and Bragg the chance to file briefs on whether to dismiss the case in the “interests of justice.” On Monday, Trump’s brief argued that his “status as President-elect and the soon-to-be sitting President” means that no “further criminal proceedings” may continue, and asserted that the jury verdict must be vacated. Bragg’s brief is due next week, but he has previously suggested putting the proceedings on hold until the end of Trump’s term as President, rather than dismissing the case altogether. If Judge Merchan doesn’t vacate the jury verdict, he could postpone sentencing until after Trump leaves office; or he could sentence Trump before he becomes President, imposing either a financial punishment that would not constrain his ability to do the job or a prison sentence to be served beginning in 2029. The most practical course is to timely sentence Trump to a fine.

Most of us might have long since experienced disengagement of interest in these Trump prosecutions and come to terms with the idea that they are essentially dead. But what will live on, in zombie form, are the longer-term consequences of having brought these cases in the first place. They immediately gave Trump a basis to claim that he was being politically persecuted via law enforcement, by the Administration he was running against, and by Democratic prosecutors. That narrative gained substantial traction among his followers. And though Trump is the first former President to be criminally prosecuted, he may not be the last, and these cases may come to be viewed as the first moves in a predictable cycle of vengeance involving investigations and prosecutions of political opponents. President Biden seems to have all but confirmed such an expectation in pardoning his son Hunter. Trump’s lawyers immediately seized upon it, writing, in Monday’s brief to Judge Merchan, that Biden’s assertions about his son having been “selectively, and unfairly, prosecuted” and about “raw politics” having “led to a miscarriage of justice,” constituted what the Trump team called “an extraordinary condemnation” of “the same DOJ that coordinated and oversaw the politically-motivated, election-interference witch hunts targeting President Trump.” Further, President Biden is reportedly considering issuing mass, blanket pardons, in anticipation of Trump’s attempts to exact revenge on officials through criminal investigations. If Biden does that, it’s hard to imagine that Trump will not feel entitled to do the same, and so on.

Even in the face of the felony convictions in New York and the criminal allegations in the other state and federal cases, the Trump prosecutions appear not to have swayed voters away from supporting or voting for him. Nor did the cases help buttress the principle that nobody, not even a President, is above the law. Smith’s election-interference prosecution led ultimately to the Court’s landmark decision establishing a criminal immunity that had not previously been so plainly declared. We were probably better off not knowing. Now that Trump is poised to enter the White House, as if to underscore the feeling of political vengeance, the lawyers who made the arguments on his behalf will become important officials in his Justice Department. Trump has announced that Todd Blanche and Emil Bove, who were his personal attorneys on the hush-money-trial defense team, will be nominated as Deputy Attorney General and Principal Associate Deputy Attorney General, respectively. D. John Sauer, who argued on Trump’s behalf in the Supreme Court’s Presidential-immunity case will be nominated as Solicitor General.

Most important, Trump himself emerged stronger. And Presidents and their Administrations generally came out more powerful in exactly the ways that those who supported the prosecutions may have wished to avoid. Presidents have become less, not more, subject to criminal law, and have become more, not less, likely to view criminal law as an option for use against political opponents. We will be living with those unintended consequences for far longer than the next four years.