Federal Judge Denies Trump Bid to Forestall September 18 Sentencing on Guilty Verdicts in Bragg Case

In a curt opinion — less than three double-spaced pages if you don’t count the caption — Judge Alvin Hellerstein has rejected Donald Trump’s attempt to move his state prosecution into federal court. Trump is seeking to forestall his sentencing on 34 felony business-records charges of which a Manhattan jury found him guilty in late May.

New York State judge Juan Merchan has scheduled sentencing on September 18 — two days after early voting begins in Pennsylvania — in the case brought against the Republican presidential nominee by Alvin Bragg, Manhattan’s elected progressive Democratic district attorney.

In a column earlier Tuesday, I explained that, though Trump’s lawyers had made some strong arguments, they were unlikely to prevail on the removal motion before Judge Hellerstein, a 90-year-old Clinton appointee. In July 2023, Hellerstein denied Trump’s original attempt to remove Bragg’s prosecution to federal court.

In his order on Tuesday, Hellerstein barely grapples with Trump’s claims.

The judge catalogues but does not address Trump’s allegations that Judge Merchan was patently biased in light of his political contributions and his daughter’s lucrative political work for top anti-Trump Democrats, including Kamala Harris, Trump’s opponent in the imminent election. (Laughably, Hellerstein refers to Merchan’s “financial contributions to Democratic politicians” but conveniently omits that Merchan contributed to the Biden 2020 campaign against Trump, violating state judicial-ethics law in the process.) Hellerstein peremptorily rationalizes that it is for state appeals courts, not a federal court, to deal with such defense objections.

That turns out to be searching analysis compared with the back of the hand that Hellerstein gives to Trump’s principal contention, namely, that a year after Hellerstein rejected his first removal petition, the Supreme Court ruled in Trump v. United States (July 1, 2024) that former presidents have immunity from prosecution for their official acts as president.

Hellerstein’s blithe retort is that he already ruled, in the first removal litigation, that the state’s charges against Trump — viz., that he falsified his business records to conceal hush-money payments to women claiming long-ago affairs with him — involved private conduct that in no way implicated official presidential acts.

As we’ve repeatedly detailed, (a) the Trump Court also held that presidential immunity includes the right to preclude evidence of official acts from being introduced by prosecutors in a criminal trial, (b) Trump vigorously objected at trial to the state’s introduction of such evidence (including the testimony of two Trump White House staffers whom Bragg’s prosecutors compelled to testify), and (c) Merchan admitted that testimony even though it was by then clear that the Supreme Court might well rule such evidence inadmissible.

Hellerstein addressed none of these points — notwithstanding that Bragg has conceded that Trump might be entitled to an adjournment of the scheduled September 18 sentencing in order to fully litigate the question whether the state’s improper introduction of this evidence entitles him to a new trial.

Judge Hellerstein’s rejection of Trump’s removal motion clears a major hurdle to Judge Merchan’s effort to sentence Trump on September 18 (after denying his immunity claim on September 16 — a schedule designed to frustrate Trump’s right to appeal prior to sentencing). I won’t belabor the point that there is no law-enforcement rationale to sentence Trump prior to the election; patently, the push for a September 18 sentencing is political: to enable the Harris campaign to label Trump “a convicted felon facing a prison sentence.”

Assuming (as I do) that Merchan will reject Trump’s immunity claim (i.e., the judge will excuse as harmless error his admission of the state’s objectionable official acts evidence), Trump should not have to face sentencing until exhausting his right to litigate immunity on appeal — first in the state courts, then potentially in the U.S. Supreme Court. But what “should” happen will make no difference unless Trump can find a federal or state appellate court willing to stay the sentencing proceeding while the immunity litigation ensues.

The window for that is closing. It is increasingly likely that Merchan will sentence Trump on September 18.