Granting a postponement over an immunity dispute is what the rule of law requires.
The New York Times is reporting that, sometime today, Judge Juan Merchan will rule on Donald Trump’s motion to postpone the sentencing that Merchan has scheduled for September 18 in connection with the jury’s guilty verdicts on 34 business-records felonies against the former president. The Times is relying on a filing by Manhattan district attorney Alvin Bragg’s office, in which prosecutors related that the state judge had advised the parties of his intention to decide the postponement question by Friday.
Describing Merchan’s supposed quandary, the Gray Lady writes:
If the judge proceeds with the sentencing this month, Mr. Trump will accuse him of meddling in the election. But if he postpones it, Justice Merchan will undoubtedly face accusations that he put Mr. Trump’s political considerations above the rule of law.
That is specious. The principal basis for Trump’s postponement motion is not that, if it is not granted, the sentencing would be a form of election interference. I happen to believe that would be true since there is no rule-of-law justification for sentencing Trump prior to the election — the schedule has been set by a deeply conflicted, partisan Democratic judge under circumstances in which Democrats want Trump labeled “a convicted felon facing a prison sentence” in the run up to the November election.
Nevertheless, Trump has a valid postponement motion because of the rule of law.
In one of Trump’s federal cases, the Supreme Court ruled on July 1 — a month after Trump’s state trial — that presidential immunity from criminal prosecution includes a derivative right to have evidence of official presidential acts excluded. Over Trump’s objection at trial, Bragg’s prosecutors offered such evidence, Merchan admitted it — despite being on notice that the Supreme Court was considering this very issue — and the prosecutors argued in summation that this evidence was “devastating” against Trump (making it difficult for Bragg to now claim its admission was mere harmless error).
In the criminal law, most issues cannot be appealed until all proceedings in the trial court, including sentencing, are concluded — e.g. Merchan’s disqualifying bias, his admission of blatantly inadmissible evidence of a key witness’s guilty plea to federal election crimes, his admission of a porn star’s gratuitous and unfairly prejudicial testimony that Trump may have forced himself on her, his refusal to allow Trump to call a key defense witness, and his failure to instruct the jury properly on the charged offenses or even require a unanimous verdict on a key charge, to cite just a few reversible errors in the record.
Immunity is different. An immunity violation is not a normal trial error. Immunity is a right not to have the proceeding occur in the first place, or at least not to be subjected to a proceeding in which presidential acts are used as evidence by prosecutors. That is why courts are supposed to rule on immunity questions before other proceedings go forward.
Also unlike other issues, if a trial judge rules against a defendant’s immunity claim, particularly a claim of presidential immunity, the defendant is entitled to appeal prior to being subjected to the proceedings from which he claims immunity.
Given the prior record in the case, I expect Merchan will rule against Trump on the immunity issue. If he does, Trump is entitled to appeal such a ruling immediately. Hence, Trump should not be sentenced: an immunity error has undeniably occurred, Trump should not have been subjected to the immunized evidence, and he should not be subjected to sentencing and the entry of final judgments of conviction until the appellate courts rule on whether the immunity error should result in the vacating of guilty verdicts and a new trial.
When Judge Tanya Chutkan suspended proceedings in the Washington federal case against Trump while the appellate courts (ultimately, the Supreme Court) grappled with Trump’s immunity claim, she was not elevating Trump’s political interests over the rule of law. She was adhering to the rule of law, which calls for immunity issues to be resolved before other proceedings in the case ensue and other issues are adjudicated.
Like Judge Merchan, Judge Chutkan is no fan of Donald Trump. She did what she did because it was what she was supposed to do. Merchan should follow her lead.