A New Yorker cartoon shows Donald Trump in an orange jumpsuit. Until last night, his enemies could enjoyably salivate over that prospect. Today, it might look to them as though president Trump is not going to jail, after all.

We cannot say yet whether that’s because he has won outright, or because he has lost so narrowly he can dispute the result and dictate the terms of his exit. Either way, the Joe Biden blow-out that most of the polls predicted and his supporters nervously expected has not happened. This is, as a New York Times headline said, a nail-biter. It is not yet a repeat of 2016; Biden could well win, but the opinion polls, which set the tone of much of the reporting of this race, and which made much of the political weather, were once again dramatically, embarrassingly wrong.

As I write, Biden has a slight lead in the electoral college. It looks as if he will win Arizona, which was Trump’s in 2016. Immigration seems to have turned the state from red to blue. The next results to watch are those from Georgia and North Carolina – if Trump wins both, the race will then be decided by the three rust belt states he flipped in 2016: Michigan, Wisconsin and Pennsylvania. If Biden wins Georgia and North Carolina, he would probably need only one of those three states.

At the moment, Trump is ahead in Georgia, but only slightly. One Democratic party operative told me that African-American votes from Fulton County outside Atlanta were still being counted and would give the state to Biden. Elsewhere, he said, Biden’s vast advantage in mail-in ballots would carry the remaining states. ‘Biden’s got this.’ It’s true that mail-in ballots favour Biden by a huge margin. That’s part of the reason why Nate Silver – a pollster who’s been less wrong than others in the past – says the final result could be Biden 280, Trump 258.

Or it could be Trump. Almost alone among polling organisations, the Democracy Institute said that Trump would beat Biden. Some early results have matched their predictions. They thought Trump would take Florida with a four-point lead; in the end it was 3.4 per cent. Florida could be a special case. President Trump did unexpectedly (and ironically) well among Hispanics there. That was largely because Cuban-American men of a certain age and outlook seem to approve of Trump’s macho, unapologetic swagger. We are still waiting to see if all of the Democracy Institute’s other state-by-state predictions are borne out – and Donald Trump is triumphant.

To understand how we got here, watch – or watch again – Andrew Neil’s interview with the director of the Democracy Institute, Patrick Basham. They discussed the shy Trump voter, people too embarrassed to say publicly that they would cast their ballot for Trump. The percentage of these voters may be only in the low single digits, but that could be more than enough to make the difference in a tight race.

The Democracy Institute also took its projections only from people identifying as likely voters instead of from those simply registered to vote – the mistake that Basham says other polling organisations made. This is a crucial difference given the devotion of many Trump supporters. Large and enthusiastic crowds came to see Trump in the last days of the campaign. Biden’s events could have been held in a campervan, as the Conservative commentator Anne Coulter said. If Trump has won, he earned his victory by fighting to the very last rally.

Of course, the votes are still being counted. And in many of the remaining states, the two candidates are separated by a gap of a few tens of thousands of votes, just tenths of a percentage point. There could be a recount in more than one state and then, as widely expected, challenges from both sides in the courts. President Trump has long been telegraphing that this will be his strategy — as so often with Trump, he says exactly what he is thinking and we should take him at his word. In the early hours of this morning, he declared that he was ready to go to the Supreme Court to right the wrong of what he has repeatedly called (without evidence) a rigged election. ‘A very sad group of people’ was trying to disenfranchise millions of Americans. ‘This is fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly we did win this election.’

Donald Trump must fear losing the protection of the Oval Office. He was ‘Individual 1’, identified as an ‘unindicted co-conspirator’ in the successful prosecution of his personal lawyer, Michael Cohen. Cohen was convicted of paying $130,000 (£100,000) in hush money to the porn actress Stormy Daniels six days before the 2016 election – an illegal campaign contribution. Cohen told me recently that this was done ‘at the direction of’ Trump and he’s prepared to give evidence against him. Cohen and many others speculate that Trump will try to pardon himself, or resign the presidency and get Mike Pence to pardon him.

This might not help Trump. A pardon would apply only to federal crimes. Making an illegal campaign contribution is a federal crime, but in this case, if Cohen is telling the truth, it may have involved other, state crimes. A payment was allegedly buried in the Trump Organisation’s accounts as ‘legal expenses’ and false accounting is a state crime in New York. More than that, Cohen told me he believed that Trump would almost certainly face state charges of tax evasion and of bank fraud. The Trump Organisation is being investigated by the Manhattan District Attorney, Cyrus Vance junior, who has already convened a Grand Jury. Cohen had spoken several times to state prosecutors about Trump’s business practices. He told me: ‘His dangers are vast and significant.’

Cohen wouldn’t tell me exactly what evidence he has given to Vance but there are some clues in his book, Disloyal. Trump is accused of keeping two sets of books – one for the banks, another for the IRS. Cohen writes that Trump would order him and other executives to inflate the value of buildings and golf courses for the banks to get bigger loans. For instance, Seven Springs mansion in Westchester cost $7m (£5.3m) but was supposedly given a value of $291m (£224m) for Deutsche Bank. For the IRS on the other hand ‘the same properties would be deemed essentially worthless, or better yet the subject of giant capital losses…he could then deduct’. Trump reportedly took a $21m (£16m) tax deduction on Seven Springs. In one scene from Disloyal, Trump gets a tax refund check for $10 million (£7.7m) and holding it up, delighted, says: ‘Can you believe how fucking stupid the IRS is?’

The president, like any other American, is innocent until proven guilty. He says that Cohen is a proven liar. But what if Trump believes that the office of the presidency is the only thing keeping him out of jail? He would cling to the gold lame drapes in the Oval Office with his last ounce of strength. And there is always a deal to be done. According to Trump, the art of the deal is to behave so unreasonably at the start of a negotiation that an opponent is desperate for an agreement on almost any terms. If Trump makes enough trouble now – in the courts or on the streets – could he extract a promise that he will remain a free man after he leaves the presidency? That would be Trump’s greatest deal ever.