Yet there is no law-enforcement reason why Trump should be sentenced on this date.
Yet there is no law-enforcement reason why Trump should be sentenced on this date.
A lvin Bragg, Manhattan’s elected progressive Democratic district attorney, appears to have shifted his position on the impending September 18 sentencing date for Donald Trump. The subtle but noticeable change is apparent in a letter from the DA’s office — written last week but docketed this morning.
As I’ve previously detailed, when Trump first moved to postpone the sentencing in light of the Supreme Court’s immunity ruling (in the Biden-Harris administration’s federal prosecution of Trump in Washington, D.C.), Bragg’s office told Judge Juan Merchan that it did not object to a postponement.
This made sense. Despite every indication that the Supreme Court was taking quite seriously Trump’s claim of immunity from criminal prosecution based on presidential acts, Bragg’s prosecutors had insisted during the state trial that Trump’s immunity objections were meritless — i.e., that former presidents were neither immune from prosecution nor entitled to the preclusion of evidence involving official acts. These positions — echoing those argued by Biden-Harris special counsel Jack Smith — were rejected in the SCOTUS’s July 1 immunity decision (Trump v. United States).
Judge Merchan has not acted on Trump’s motion to postpone the sentencing, notwithstanding that (a) Trump would have a right to appeal if (as expected) Merchan rules against him on the immunity issue, and (b) such an appeal should be litigated — in state appellate courts and potentially in the U.S. Supreme Court — prior to the imposition of sentence.
To the contrary, Merchan has advised the parties that he intends to make his immunity ruling (part of Trump’s post-trial motion to vacate the jury’s 34 felony guilty verdicts and to dismiss the indictment) on September 16. This strongly suggests that the judge is consciously delaying his immunity decision in order to frustrate Trump’s appellate rights: As a practical matter, once Merchan denies Trump’s post-trial motion, the former president would have only one business day (September 17) to try to convince a state appellate court or a federal court to stay the sentencing while he appeals Merchan’s immunity ruling.
To repeat what I’ve said before, there is no law-enforcement reason why Trump, the Republican presidential nominee, should be sentenced on September 18 — two days after early voting begins in the pivotal state of Pennsylvania. Even if Merchan imposes a prison sentence, there is no realistic chance that Trump would be imprisoned while his appeal — which may take years — is pending, given the nonviolent nature of the offenses (business-records charges) and the slew of appellate issues that make reversal likely.
The only reason to press ahead with sentencing on September 18 is the partisan political goal of enabling Vice President Kamala Harris’s campaign to refer to her opponent in the imminent election as “a convicted felon facing a stiff prison sentence.” On that score, Merchan recently again rejected Trump’s well-founded motion that Merchan recuse himself on the grounds of his contribution to Biden’s 2020 campaign against Trump (in violation of state ethics law) and the lucrative campaign work that Merchan’s daughter has done for Harris, Biden, and other Democrats who define themselves by opposition to Trump.
With Merchan appearing to drag his feet intentionally, Trump’s lawyers last week filed a motion to remove the state criminal case to federal court. While counsel make a number of strong points (see my column last week), under federal court rules in Manhattan (the Southern District of New York), Trump’s removal motion has been assigned to Judge Alvin Hellerstein, the 90-year-old senior jurist and Clinton appointee who rejected Trump’s first removal motion back in July 2023. Trump failed to appeal Judge Hellerstein’s ruling — which Merchan later relied on in rejecting many of Trump’s objections prior to and during the state trial.
There is no rule requiring Hellerstein to act on Trump’s removal motion by a date certain. There is no rule requiring Merchan to act on Trump’s motion to postpone the sentencing prior to September 16 . . . or 18. And there is no rule requiring Merchan to suspend proceedings in the state court while Hellerstein weighs the removal issue. To be sure, a good, non-conflicted judge would postpone sentencing until the immunity issues have been fully adjudicated, but if Merchan won’t, it will take action by either Hellerstein or a superior state court to stop him from proceeding.
As noted at the start of this column, Bragg’s office submitted a letter to Merchan late last week (and docketed today), responding to Trump’s notice regarding the new federal removal motion he’d just filed. The letter was written by Matthew Colangelo, the former top Biden-Harris Justice Department lawyer who took a line-prosecutor job in Bragg’s office so he could prosecute Trump. Colangelo takes pains to clarify that Bragg has not agreed with Trump that the sentencing should be postponed. Rather, the DA’s office is not objecting to Trump’s postponement motion and is “defer[ing] to the Court [i.e., Merchan] on the appropriate post-trial schedule.”
In case you don’t speak weasel, I’ll translate: If Merchan wants to go ahead with sentencing on September 18, Bragg is all in, despite having offered evidence of Trump’s official acts as president that — the Supreme Court’s immunity ruling confirms — should have been excluded from the trial.
Bragg and Colangelo know that they created the immunity problem by offering evidence that was both prejudicial and unnecessary; hence, the DA’s office would look even worse on appeal if prosecutors objected to Trump’s postponement motion. Yet they also know that if they affirmatively agree with Trump that the sentencing must be postponed, it would be impossible for Merchan to justify imposing sentence on September 18. So Bragg is hedging his bets. In his office’s last letter, he stressed to Merchan that security and public-resources concerns might militate in favor of postponement; but in the office’s latest letter, he emphasizes that there need not be a postponement just because Trump is seeking removal — and he rebukes Trump for dilatory tactics and for seeking removal again even though he didn’t appeal Hellerstein’s first removal ruling.
It is a cynical exercise. Bottom line: If there is still a chance for Merchan to help the Harris campaign by getting Trump sentenced on September 18 — with Election Day just six weeks away and with early voting already under way — Bragg does not want to be blamed by Democrats for blowing it.