Here's what's at stake in Trump's criminal trial on Election Day

UPDATE (November 6, 2024, 6:00 a.m. ET): This article has been updated to reflect NBC News' forecast Donald Trump defeated Kamala Harris to take back the White House.

What is the best advice Donald Trump's defense attorneys could give him at this point?

Win the election.

The Electoral College results could determine whether the Republican presidential candidate spends the next few years in the White House or in courtrooms fighting to stave off prison time. In fact, if Trump wins, his criminal cases would almost certainly be halved.

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Here's the status of his four charges, starting with the federal cases that are actually on the ballot.

Secret documents and obstruction case

In July, U.S. District Judge Aileen Cannon dismissed the case accusing the former president of improperly retaining national defense information after leaving office and obstructing the investigation into his actions. The Trump-appointed judge argued that special counsel Jack Smith was improperly appointed and Smith is appealing the dismissal of the case. Anyone who loses in the 11th U.S. Circuit Court of Appeals could appeal to the Supreme Court.

But the case could be over in February if Trump, who has pleaded not guilty in all of his criminal cases, takes office in January. The Republican presidential candidate said he would fire Smith in “two seconds” if he won. The former president, who granted clemency to various cronies during his time in office, could also attempt a legally untested self-pardon. And the Justice Department has a policy against indicting and prosecuting sitting presidents that could also come into play.

Even if Trump loses the election and Cannon's firing is reversed on appeal, the fate of the case is uncertain as long as she presides. While there is a good chance that the appeals court will overturn the dismissal and the Supreme Court will uphold that overturn, it is less likely (but still possible) that the appeals court will assign a new judge to handle it. This is despite the Florida judge's Trump-friendly actions so far and the possibility that a President Trump might try to promote her to higher office.

Case of interference in the federal election

Trump's other federal case is being handled by a judge who is arguably Cannon's opposite: Obama appointee Tanya Chutkan. The biggest criticism in this case — if Trump loses and cannot be dismissed — is the Supreme Court's July ruling that granted the former president broad criminal immunity. Not only did that limit the case accusing Trump of illegally trying to undermine the 2020 election, which he lost to Joe Biden, but it also left unclear how much of Smith's case can make it to court .

That's because the Supreme Court's Republican-appointed majority presented a vague test that eliminated some aspects of Smith's case but left it to Chutkan to decide how much of the rest of the case survives. Whatever the District of Columbia judge decides could ultimately be appealed to the justices again before the trial continues. So while Cannon is the unclear factor in the documents case, the Roberts Court is silent on this one.

On that note, another case that the justices announced last term limiting obstruction charges against the Jan. 6 defendants could also help Trump, who is accused of obstruction on two of the four counts in his D.C. indictment.

Georgia election interference case

The Supreme Court's immunity ruling could also limit Trump's state election interference case — but we're not even there yet. That comes amid a pretrial appeal in which the defense is trying to disqualify Fulton County District Attorney Fani Willis. If Willis and her office abandon the case, it is an open question as to when and whether he will be assigned to a new office or a new prosecutor.

And even if Willis wins the pretrial appeal and Trump wins the election, you can't expect a sitting president to be tried in state court either. That matter has not been argued, but Trump's attorney in Georgia, Steve Sadow, has signaled he is willing to argue the matter on constitutional grounds.

Even if Trump loses and Willis stays on the case, don't expect a Trump trial to take place in Georgia any time soon. In addition to immunity and other issues that remain to be resolved, there are several co-defendants in the racketeering indictment, which brings its own complications.

Another criticism is that one of those co-defendants, former Trump White House chief of staff Mark Meadows, has a petition pending before the Supreme Court seeking to move his case to federal court. This issue extends beyond Meadows, as other co-defendants are seeking the same compensation, including Trump-era environmental lawyer Jeffrey Clark. (Meadows and Clark have pleaded not guilty.)

Meadows' petition is scheduled to be considered at the justices' private conference on Friday, so we could soon learn whether the court will take up the petition. It takes four judges to grant review.

New York hush money case

Finally there is Manhattan. In May, Trump was convicted of falsifying business records for covering up the refund of hush money paid to Stormy Daniels in the run-up to the 2016 presidential election. The adult film star claimed she had sex with Trump years ago, which he denied.

The verdict in this state case was postponed, most recently to November 26th. But first, Judge Juan Merchan will decide on November 12 whether the guilty verdicts stand in light of the Supreme Court's immunity decision. Even though Trump was not convicted in New York for presidential acts, his lawyers argue that the evidence used by prosecutors to convict him still contradicts that verdict.

Trump's lawyers have also signaled that they would immediately appeal a negative immunity decision, possibly all the way to the Supreme Court. Regardless of whether Trump wins the election, his sentencing in New York could be delayed even further because of this possible appeal. In any case, incarceration is not mandatory in this case, as it is the lowest statutory charge among the four charges against Trump.

But the fact is that in all his cases, his best defense is an election victory.

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