Judge Merchan seems anxious to impose sentence on September 18, even though DA Bragg has agreed to a postponement so Trump’s immunity claim can be litigated.
Lawyers for Donald Trump are seeking an order removing all further proceedings in Manhattan District Attorney Alvin Bragg’s prosecution of the former president to federal court. The immediate objective of the motion is to postpone Trump’s sentencing on 34 felony counts of which a New York state jury found him guilty back on May 30.
Indefensibly, Judge Juan Merchan, who presided over the trial, has so far refused to postpone the sentencing, now scheduled for September 18. This, despite the facts that (1) Trump has filed a colorable motion to vacate the guilty verdicts based on the Supreme Court’s immunity ruling (Trump v. United States), which was issued on July 1, a month after the trial; (2) even if Judge Merchan rules against him on the immunity issue, Trump is entitled to appeal before any further proceedings in the case; (3) conceding Trump’s appellate rights, DA Bragg has told the judge that the state does not object to a postponement of the sentencing (see my column, here); and (4) there is no legal reason why sentencing must take place promptly, much less prior to the November presidential election, in which Trump is the Republican Party’s nominee.
As I discussed in the above-linked column (and Rich and I have talked about on the podcast), Merchan appears to be attempting to frustrate Trump’s appellate rights. Merchan has advised the parties that he would rule on immunity on September 16, then proceed with sentencing on September 18. If, as seems inevitable, Merchan rules against Trump on immunity, this schedule would give Trump only a single business day to find a state appellate court or a federal court to stay the imposition of sentence while Trump appeals Merchan’s immunity decision.
Immunity is one of the few issues in criminal law practice that should be decided before other proceedings in the case go forward — because immunity involves the question of whether proceedings against the defendant claiming immunity are illegal. (That is, the offense lies not just in convicting the immune but in prosecuting him in the first place.)
Bragg created this problem. Even though the charges against Trump involve private conduct that, in essence, does not implicate the presidency, prosecutors gratuitously introduced Trump’s official acts as part of their proof — even adducing testimony from two White House staffers about Trump’s presidential communications and practices. Bragg and his subordinates did this even though they knew the Supreme Court had the question of presidential immunity under consideration, and that at oral argument, several justices had appeared sympathetic to Trump’s claim of immunity — including to the contended impropriety of prosecutors using official presidential acts as evidence in criminal cases. As I’ve argued, Bragg did not need this evidence to prove the indictment’s charges of business-records falsification, but he recklessly went ahead with it anyway, with Merchan’s predictable indulgence.
It has been nearly two weeks since Bragg told the court that the state did not object to a postponement of the sentence — and drew Merchan a face-saving roadmap by which to postpone without admitting error (i.e., rather than acknowledge the strength of Trump’s immunity argument, Merchan could cite the security preparations attendant to proceedings in the case and avoid a potential waste of public resources by staying the sentencing now, rather than at the last minute). Yet Merchan has not acted, strongly suggesting that he intends to go forward with his wayward plan of deciding immunity (against Trump) on September 16 and rushing to impose sentence on September 18.
To my mind, it was appropriate for Trump’s lawyers to wait until now to seek federal court intervention. It is always better to give presiding judges a reasonable opportunity to do the right thing on their own, rather than asking a superior court to force their hand. (Although a federal district court is not “superior” to a state trial court the way a state appeals court is, in this instance, with core federal interests at issue, the federal court is in a position to divest the state court of jurisdiction, at least temporarily.)
Trump filed his removal motion in Manhattan federal court — the Southern District of New York (SDNY). It is the second time he has sought removal of Bragg’s prosecution. Back in 2023, Judge Alvin Hellerstein (at age 90, he is now a senior judge, appointed to the bench by President Clinton in 1998) ruled against Trump in a 25-page opinion that gave Bragg every important bounce of the ball. Hellerstein’s decision has since been heavily relied on by Merchan in rejecting Trump’s claims of immunity and protestations that Bragg was improperly seeking to enforce federal election law.
In the new motion, Trump attorneys Todd Blanch and Emil Bove observe that there have been several intervening developments that either undercut Judge Hellerstein’s reasoning or demonstrate that Bragg’s representations to him about the case were disingenuous.
Most obviously, the July 1 Trump immunity ruling by the Supreme Court has instructed that presidents have not only presumptive immunity from criminal prosecution but also an immunity-based evidentiary privilege against a prosecutor’s introduction of official-acts evidence in a criminal trial. Bragg had insisted that Trump’s claims along these lines were invalid. He was wrong.
Moreover, Team Trump argues that the former president’s position has been strengthened by two other 2024 Supreme Court decisions: Trump v. Anderson, in which the justices rejected a state’s (i.e., Colorado’s) attempt to remove from the ballot a candidate for federal office (Trump) in the absence of a congressionally prescribed process for proving the candidate is an “insurrectionist” for purposes of the 14th Amendment (§3); and Loper Bright Enterprises v. Raimondo, in which the Court overruled the Chevron doctrine that had required deference to administrative agencies’ interpretations of their statutory authority. From these new precedents, Trump argues that Hellerstein and Merchan should not have relied on the Federal Election Commission’s “restrictive interpretation of the preemption clause in the Federal Election Campaign Act” (FECA). Trump contends that Bragg should have been deemed preempted from enforcing FECA — offenses against which were framed by prosecutors as the “other” crime that Trump was allegedly concealing by falsifying his records. (It was this supposed “other” crime by which Bragg converted what is ordinarily a business-records misdemeanor into 34 felonies and thus circumvented the two-year statute of limitations for misdemeanors, under which his case would have been time-barred.)
The defense’s FECA preemption objections can only be strengthened by the record. Bragg manufactured his own federal election law, turning lawful nondisclosure agreements (NDAs — here, involving payments in exchange for silence from two women who claimed to have had romantic affairs with the married Trump circa 2006) into cognizable campaign expenditures required to be reported to the FEC. Merchan then (1) refused to allow Trump to call a highly qualified expert on campaign law (Bradley Smith, who would have explained why NDAs are not FECA campaign expenditures), (2) allowed two witnesses — Michael Cohen and David Pecker — numerous times to provide improper testimony that they believed they had violated campaign law (which even Merchan conceded was inadmissible against Trump); (3) declined to instruct the jury on the demanding criminal intent standard — willfulness beyond a reasonable doubt — for proving federal campaign crimes; and (4) declined to require a special verdict form that would have indicated whether the jurors unanimously found Trump to have committed FECA offenses.
It bears noting, in addition, that the Biden-Harris Justice Department took no action to attempt to block Bragg’s unauthorized use of federal campaign law — even though Congress has given DOJ exclusive jurisdiction over criminal enforcement of that esoteric body of law. It is difficult to imagine such passivity from the aggressively territorial DOJ if the case had not involved an elected Democratic district attorney who was prosecuting the Republican presidential nominee running against Biden (and now Harris).
Trump’s lawyers further contend that Bragg misled Judge Hellerstein, representing that Trump’s official acts as president would not be part of the prosecution’s proof. Not only were the two Trump White House staffers compelled by state prosecutors to provide evidence of federal government activities; Cohen testified that Trump had told him then–attorney general Jeff Sessions would abort an FEC investigation into the NDAs. (As I’ve previously detailed, this is highly unlikely testimony: Cohen is a convicted perjurer; no evidence corroborated his claim; there is not a scintilla of evidence that Sessions, a straight-arrow, would involve himself in such a thing; and the attorney general has no power to stop a probe by the FEC, an independent administrative agency, in which Congress has vested civil enforcement authority over FECA.)
The removal motion recites the copious evidence that Merchan is biased against Trump and should have recused himself. I summarized that evidence as follows in the above-referenced column:
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.
The fact that Merchan has not postponed the sentence when even Bragg has agreed to a postponement and when there is no good rule-of-law reason to impose sentence before the immunity issue is fully litigated only bolsters Trump’s position. Merchan appears to be doing exactly what a conflicted judge would do.
Team Trump’s reliance on the removal doctrine is strategically sound in that it enables them to argue their claim from a position of strength. When a state prosecution could negatively affect federal functions — as a case in which official acts are alleged as proof of state crimes necessarily does — the law strongly favors removal to federal court. This empowers a federal tribunal to protect federal interests while enforcing the law, and simultaneously insulates the federal defendant from the potential political motivation of partisan state officials.
This approach should allow Trump’s defense to overcome the presumption against federal interference with state criminal proceedings. Under the Supreme Court’s 1971 decision in Younger v. Harris, that presumption gives way only in “exceptional and extremely limited circumstances,” such as where a state proceeding would do irreparable injury to a vital federal interest. Merchan’s refusal to postpone the sentencing until after the election presents such a situation. Congress’s removal law (codified in §1442 of Title 28, U.S. Code) is intended to address state attempts to criminalize actions taken under color of federal authority. And that was true long before the Supreme Court ruled this summer that official presidential acts should not be presented as evidence against former presidents in criminal proceedings.
It would be good if Judge Merchan took it upon himself to postpone the sentencing, as he should have done two weeks ago. Otherwise, the federal court should stay the state proceedings while the immunity issue is litigated.