Bragg Concedes Trump’s Appellate Rights on Immunity Issue, Signaling Postponement of Sentencing

Manhattan district attorney Alvin Bragg has conceded that it would be prudent for the state court to postpone the sentencing of Republican presidential nominee Donald Trump, which is currently scheduled to occur on September 18.

In a letter to Judge Juan Merchan, which was docketed by the court on Monday (though it is dated the prior Friday), Bragg acknowledged that some of the evidence introduced by his prosecutors at last spring’s trial was improperly admitted under the Supreme Court’s immunity ruling in United States v. Trump.

The high court’s decision was issued about a month after the trial, at which the jury found Trump guilty on 34 counts of business-records falsification. The majority justices held that former presidents have presumptive immunity from criminal prosecution for official acts, derivatively including a right to preclude such acts from being used as evidence by prosecutors.

As I detailed last Friday, over the objections of Trump’s counsel, Bragg’s prosecutors heedlessly offered, and Judge Merchan admitted into evidence, significant evidence involving Trump’s official acts as president. Indeed, prosecutors compelled by subpoena the testimony of two Trump White House staffers.

At trial, Bragg took the categorical position that there was no presidential immunity and no derivative exclusion of evidence. This, despite the facts that (1) the Supreme Court had granted certiorari in Trump’s federal prosecution in the Washington, D.C., election-interference case in order to decide these very issues; (2) the Washington prosecution had been suspended for months because federal courts recognized that immunity issues should be conclusively decided pretrial (including any pretrial appeals); and (3) at the April 25 Supreme Court oral argument (which occurred while the state trial was in its early stage) several justices signaled (a) sympathy for the immunity claims and (b) alarm over the failure of lower-court judges to scrutinize prosecutors’ allegations to determine what implicated acts might be immune.

The letter from Bragg, an elected progressive Democrat, is not a total retreat. He acknowledges that a court ruling denying presidential immunity is immediately appealable; yet he attempts to distinguish Trump’s case, arguing that the issue is not immunity from prosecution (as it is in the Washington federal case) but rather what Bragg minimizes as prosecutors’ violation “of a brand-new evidentiary rule that derives from official-acts immunity,” and the resulting question of whether this violation was harmless error.

Bragg conveniently omits that (1) Trump’s team asked for a delay in the trial so that Merchan could proceed with the benefit of the Supreme Court’s guidance, which was expected in late June or early July (it came on July 1), (2) defense lawyers vigorously also objected on immunity grounds, and (3) in argument to the jury, Bragg’s prosecutors described as “damaging” and “utterly devastating” the testimony he now suggests was “harmless.”

I observed in last Friday’s column that Merchan should grant Trump’s motion to postpone the September 18 sentencing. Not only does Trump have a viable immunity claim that is subject to appeal regardless of how Merchan rules on it; there is simply no law-enforcement rationale for proceeding with the sentence in the stretch run of the presidential campaign.

Merchan — who contributed to President Biden’s 2020 campaign against Trump in violation of state judicial-ethics law, and whose daughter is a progressive political activist who has done lucrative campaign work for Vice President Kamala Harris, among other top Democrats — scheduled the sentencing to occur on September 18, two days after early voting begins in Pennsylvania, the state likely to be decisive in the 2024 presidential election. Democrats want Trump sentenced in hopes of branding him “a convicted felon facing a prison sentence” during the final seven weeks prior to Election Day.

Bragg attempts to camouflage his concessions as less a matter of prosecutorial error than a bow to public safety. He notes that “significant public safety and logistical steps by multiple agencies are necessary to prepare for court appearances in this matter.” The DA thus reasons that a delay could be prudent so that public resources are not wasted preparing for a sentencing hearing that may well be postponed if Trump immediately appeals Merchan’s ruling on his immunity claim.

As I noted in the column, Merchan obviously endeavored to make such an appeal difficult by notifying the parties that he would make his immunity ruling on September 16 — leaving Trump as little as a day to attempt to convince an appellate judge to block the sentencing while he appealed.

Bragg’s letter gives Merchan a roadmap to retreat — on public safety and resources grounds — from his avowed determination to sentence Trump on September 18. I expect the judge will follow the DA’s lead, as Merchan has throughout the proceedings.