It could not be more obvious what the judge should do here.
It could not be more obvious what the judge should do here.
F ormer president Donald Trump’s defense team has written a letter to Judge Juan Merchan seeking postponement of the scheduled September 18, 2024, sentencing date.
As I’ve explained in recent posts (here and here, and at Fox News here), Judge Merchan has signaled his intention to deny Trump’s pending motion, principally based on the Supreme Court’s immunity ruling in Trump v. United States, to vacate the guilty verdicts and dismiss the indictment. On July 1, about a month after the jury found Trump guilty on 34 counts of business-records falsification, the Court held in Trump that presidents have at least presumptive immunity from criminal prosecution for official presidential acts, and absolute immunity for official acts within the president’s core constitutional authorities.
It could not be more obvious that Merchan should postpone the sentencing.
To begin with the most obvious point, there is no law-enforcement or judicial reason for proceeding with sentencing on September 18. The push for sentencing six weeks before Election Day is patently partisan, driven by the elected progressive Democratic district attorney, Alvin Bragg, and Judge Merchan — an appointed Democrat who contributed to the 2020 Biden campaign in violation of New York judicial ethics law, and whose daughter is a progressive political operative who has done lucrative campaign work for Vice President Kamala Harris and President Joe Biden, Trump’s current and former opponents in the imminent November election. The aim is to enable the Harris campaign and the media-Democrat complex to bray, through the campaign stretch-run, that Trump is a multiple-count convicted felon who is facing a prison sentence.
As we shall further discuss, the pending-immunity issue calls for either prompt undoing of the guilty verdicts or, at the very least, extensive post-trial fact-finding that Merchan, at Bragg’s urging, recklessly failed to perform pretrial. Even if that were not the case, the insistence on a September 18 sentencing would be sheer political theater.
No matter what sentence Merchan could impose (between zero and 20 years), Trump would get bail pending appeal. The business-records charges on which he was indicted (as opposed to the farcical conspiracy to steal the 2016 presidential election that Bragg and Merchan told the jury was charged) are nonviolent Class E felonies (see CPL §175.10). Normally (i.e., if the suspect were anyone not named Donald Trump), the case would not even have been brought (especially by progressive prosecutor Bragg); at most, the charges would be misdemeanors (which is all Bragg arguably proved in the case).
For convicted defendants, New York law weighs heavily in favor of non-incarceration pending appeal — particularly where, as here, there are weighty appellate issues — unless the counts of conviction include serious Class A felonies, or certain serious Class B and C felonies (see CPL §530.50). Hence, even if Merchan were daft enough to deny Trump bail pending appeal (and I doubt that he is), the appellate division would grant it.
Consequently, if the immunity ruling does not more promptly result in the vacating of the guilty verdicts, the case is going to be on appeal for a year or more (maybe much more). No one can plausibly argue that the conduct at issue shows Trump is a dangerous felon who must be removed from the streets while his appeal proceeds — no one has come close to making such a ridiculous claim to this point. There is thus no compelling criminal-justice rationale for rushing to sentencing, particularly when there are significant legal reasons to doubt that the verdicts will ultimately stand.
There are, however, compelling reasons for delay.
Trump is a major-party candidate for the presidency. On September 16, two days before the scheduled sentencing date, early voting begins in Pennsylvania, a state many analysts believe will be decisive in the election. Rushing to sentencing after voting has begun is manifestly an attempt to have the legal proceeding influence the outcome of the election. (Ironically, then, Bragg and Merchan are doing exactly what Bragg accused Trump of doing in 2016 — conduct he said was worthy of 34 felony counts.)
And remember, the trial in Manhattan was a heavily covered spectacle that lasted over a month. Even if it were appropriate to time legal proceedings based on election considerations (it’s not), it cannot be credibly contended that sentencing must occur so the voting public becomes better informed. Everyone knows what this case was about — and, for good measure, Bragg and Merchan gratuitously allowed a porn star to testify that Trump may have forced her into a sexual encounter against her will (a stunning departure from the consensual-sex account she had spouted for years), so voters have also heard deeply disturbing evidence that should never have been permitted in the trial.
The push to sentence Trump on September 18 is transparently political. It is also insidious.
Merchan has told the parties he plans to issue his ruling on Trump’s post-trial immunity motion on September 16, and then plans to conduct sentencing on September 18. Putting aside this unmistakable signal that the judge has already decided to deny the defense-immunity motion, Merchan’s schedule is manifestly designed to make it difficult, if not impossible, for Trump to appeal the immunity ruling and block the imposition of sentence.
This is outrageous, especially in light of how Merchan, egged on by Bragg, conducted the trial.
Bragg could easily have offered proof that Trump’s business records were intentionally falsified without relying on any evidence of Trump’s official acts as president. The falsification theory was based on private discussions among Trump, Michael Cohen, and David Pecker, almost all of which occurred before Trump took office. The business records generated in 2017 could have been proved by testimony from Cohen and private employees of the Trump organization.
(An aside: I would also argue that Bragg, without relying on evidence of official acts of the presidency, could have proved the supposed second crime that Trump was allegedly attempting to conceal by falsifying his business records (the phantom crime that transmogrified the business-records misdemeanors into felonies). I cannot say that, however, because Bragg did not prove a second crime beyond a reasonable doubt. As I’ve pointed out repeatedly, the second crime Bragg finally settled on, a misdemeanor conspiracy violation of New York election law, is only a crime if the prosecutor establishes that the objective of the so-called conspiracy was a crime. Bragg mainly relied on federal campaign violations (which he neither proved nor had jurisdiction to prosecute) but floated three separate theories. Merchan then finished the job for the prosecutor by erroneously telling the jurors they did not need to be unanimous about the criminal objective of the conspiracy — notwithstanding that, to repeat, there is no conspiracy absent a criminal objective, so to convict, the jury must find one unanimously. That never happened — or, at least, we must assume it didn’t because Merchan studiously refrained from having the jury complete a verdict form specifying its findings. Since Bragg did not prove a second crime, I do not want to suggest that this had anything to do with his reckless decision to rely on official-acts evidence. Rather, his proof was insufficient, and he obtained guilty verdicts thanks to Merchan’s fatally flawed jury instructions.)
Instead, Bragg’s prosecutors gratuitously and undeniably relied on evidence of Trump’s official acts as president to prove the business-records charges. Both they and Merchan were on notice that doing so was perilous.
Trump’s counsel vigorously objected to this evidence. Bragg’s prosecutors — obviously relying on the D.C. Circuit’s immunity ruling in Trump’s Washington federal case, which was later reversed by the Supreme Court — insisted that former presidents did not have immunity from criminal prosecution, full stop, and that there was no corresponding privilege barring prosecutors from using official-acts evidence to prove crimes that were essentially private misconduct. Yet Bragg and his subordinates knew that the Supreme Court had granted certiorari to review the D.C. Circuit’s ruling, meaning that these very issues were under the justices’ consideration, with a ruling expected around late June or early July (again, it came on July 1).
Rather than waiting for the Court’s guidance, Merchan accommodated Bragg’s insistence on proceeding to trial. On April 25, when it was still early in the trial, the Supreme Court conducted oral argument in the immunity case — the proceeding Merchan refused to allow Trump to attend, heedless of his constitutional right to be present. The oral argument elucidated that several of the justices (a) appeared to believe that there was immunity for at least some, and perhaps a wide swath of, official presidential acts, and (b) appeared disturbed that the lower courts in Washington, D.C., had failed to conduct a searching review of the federal indictment and evidence the prosecutors intended to offer, in order to determine (i) what conduct comprised official acts, and (ii) whether those acts were immune from prosecution.
From this, and from the fact that the federal proceedings before Judge Tanya Chutkan in Washington had by then been suspended for five months because of the importance of conclusively resolving the immunity issue before anything else happened in the case, Bragg and Merchan were on notice that the state and the court were playing with fire by permitting proof of Trump’s official acts — indeed, by using state subpoenas to compel the testimony of two Trump White House staffers (who the prosecutors told the jury, in summation, had provided “damaging” and “utterly devastating” testimony against the former president).
What is remarkable from reading the record is Merchan’s cluelessness regarding the immunity issue. When Trump’s counsel raised immunity objections and it was clear that the prosecutors were going to offer evidence of his conduct as president, Merchan overruled the objections and admonished defense lawyers, “We are going to wait until trial and you can make your objections at that time.” Of course, the point of immunity — and the reason Judge Chutkan’s case was then in suspension — is that the court is obliged to fully litigate and decide immunity issues prior to the trial because immunity is a right not to be tried on immunized acts in the first place.
Also prior to trial, Trump’s counsel objected to Bragg’s planned introduction of tweets Trump had issued as president (which Bragg couched as a White House-directed public “pressure campaign” against Cohen). In rejecting Trump’s immunity argument, Merchan stated:
If the argument is that tweets that your client sent out while he was President cannot be used because they somehow constitute an official presidential act, it’s going to be hard to convince me that something that he tweeted out to millions of people voluntarily cannot be used in court when it’s not being presented as a crime. It’s just being used as an act, something that he did. [Emphasis added.]
Clearly, Merchan did not grasp the concept of immunity. He reasoned as if Trump had made an argument based on a claim of confidentiality privilege. Such a privilege, of course, can be waived if the privilege holder publicly discloses the confidential information. But immunity is not a privilege of confidentiality; it is a privilege against being charged with crimes wholly based on official acts and, derivatively, against having official acts used as evidence to prove crimes mainly based on private acts. If speaking to the American people in his official capacity as president is a presumptively immunized act, as the Supreme Court has now said it is (see Trump, majority op. 28–30), then it doesn’t matter if a billion people read Trump’s tweets because the objection has nothing to do with confidentiality.
As the Supreme Court has now made clear, moreover, it makes no difference whether prosecutors intend to prove official acts as crimes per se or as “acts” in the chain of evidence. If the acts are immune, they may not be relied on, period. Merchan and Bragg had every reason to proceed cautiously because they knew the Supreme Court was weighing this very issue in connection with the same defendant they were trying. Yet they plowed ahead.
A good, non-conflicted judge would not have to be told any of this. In light of the gravity of the immunity issue and edified by a new, salient Supreme Court ruling, a good, non-conflicted judge would either (a) vacate the guilty verdicts now or (b) postpone the sentencing sine die with an eye toward conducting the searching inquiry that Judge Merchan should have conducted prior to trial, and that the Supreme Court has directed Judge Chutkan to conduct pretrial in the Washington federal case — i.e., an exacting examination of (i) what acts proved by Bragg’s prosecutors were official acts, (ii) which of those official acts should have been deemed absolutely immune, and (iii) as to any remaining presumptively immune acts, whether Bragg could meet his burden of overcoming the presumption (i.e., demonstrate, as Chief Justice John Roberts’s Trump opinion puts it (at p. 14), that “applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch”).
Merchan, instead, is conducting himself as a deeply conflicted judge (which is exactly what the Trump defense has accused him of being from the start, based on abundant evidence). He is elevating the partisan objective of getting Trump sentenced in time for Democrats to exploit the sentence for campaign purposes, rather than protecting the integrity of judicial proceedings by making certain, to the extent he still can, that the case over which he is presiding adheres to Supreme Court teaching on constitutional law.
To be clear, I do not believe Team Trump is correct across the board on its immunity claims. His lawyers are straining to frame as official acts some conduct that was almost exclusively private. And the defense contention that then-president Trump’s 2018 financial-disclosure form should have been precluded on immunity grounds seems meritless. (Weirdly, the defense suggested that Trump had not reimbursed Cohen for $130,000 paid for the porn star’s silence; in the disclosure form, Trump admitted reimbursing Cohen, see here, p. 45, footnote.) That is, I believe Trump’s position is foreclosed by Chief Justice Roberts’s hypothetical discussion in Trump of a pardon/bribery scheme — in which Roberts reasoned that immunity would not preclude prosecutors from pointing to the public record of the pardon itself, only from offering testimony about the president’s thinking and motivation in issuing the pardon that generated the public record (Trump op. 32 & n.3).
That said, though, it is incontestable that Bragg’s prosecutors relied on immunized acts — some of them likely absolutely immune, such as consultations with White House staffers about the president’s public communications — which should not have been proved. Further, prosecutors explicitly urged Merchan to rely on theories now known to be flatly wrong — i.e., that there was no presidential immunity from criminal prosecution, and no immunity-based bar on the use of presidential acts as evidence.
Both Bragg and Merchan had reason to know these theories could be wrong based on what was going on at the Supreme Court prior to and during the Trump trial. It was heedless of Merchan to forge ahead with the trial when everyone knew the high court’s guidance was coming in July. The only reason for doing so was the partisan objective of trying to get Trump convicted during the 2024 presidential campaign. And even if one were to suspend disbelief and assume that Merchan was acting in good faith, his comments in the record indicate that he did not even understand the immunity issue, much less address it responsibly.
It would be a violation of the Constitution for Judge Merchan to proceed with Trump’s sentencing until the immunity issue has been fully litigated, including on appeal, if necessary. It would violate presidential immunity. It would violate the supremacy-clause principles that oblige state judges and prosecutors to refrain from actions that could undermine the lawful functions of the federal government (meaning actions the feds are permitted to take, not necessarily that they should take).
If Merchan will not voluntarily postpone the sentencing, Trump should consider asking the federal courts to enjoin further state proceedings until the immunity issue is fully litigated in state and, potentially, federal court. Or, Trump should again seek removal of the state case to federal court, with further proceedings taking place there. (Removal was denied by a lower federal court judge pretrial, long before the Supreme Court’s immunity ruling.) There are reasons to believe that the gravity of the federal interests that have been raised, and the potential harm, overcome the presumption against federal interference in state criminal prosecutions. That’s grist for a future post.