More gamesmanship: The immunity claim should be decided first, but the judge wants to press ahead with a sentence to fuel Democratic campaign messaging.
As discussed in my posts yesterday (here and here), Judge Alvin Hellerstein of the Southern District of New York (federal court in Manhattan) gave the back of the hand to Donald Trump’s motion to remove the New York State criminal case against him to federal court.
The former president is trying to forestall his scheduled September 18 sentencing on the 34 felony business-records charges of which a jury found him guilty back in May. He has sought a delay — indeed, he is seeking to have the guilty verdicts vacated — based on the Supreme Court’s immunity ruling on July 1 (a month after the criminal trial ended).
Trump, the Republican nominee in the upcoming presidential election, wants sentencing postponed until after the election. He knows there is a strong possibility that Judge Juan Merchan would impose a prison sentence. Although Trump would not really be imprisoned at that point — he would get bail pending appeal, which could take years — he does not want the campaign of his opponent, Vice President Kamala Harris, to label him “a convicted felon facing a prison sentence” during campaign speeches and ads in the stretch run of the 2024 presidential race.
An immunity issue is thus opportune for Trump. If Merchan rules against him on immunity, which is highly likely, that decision should be appealable before further proceedings in the case, including the imposition of a sentence. (In the criminal law, most disputed issues are appealed only after everything is fully litigated in the trial court and sentence is imposed. Immunity is different because the law violation would be not the wrongful conviction of a defendant, which can be cured on appeal, but his subjection to trial proceedings in the first place, a harm that cannot be cured by reversal of the conviction.)
So far, Judge Merchan has refused to act on the immunity motion and Trump’s related motion to postpone the sentencing so the immunity issue can be fully litigated on appeal. Alvin Bragg, the elected progressive Democratic district attorney who brought the case, has alerted Trump that the state has no objection to a postponement — an implied admission on Bragg’s part that Trump is entitled to appeal any adverse immunity ruling.
Bragg, however, is not joining Trump in seeking a postponement of the sentencing — his prosecutors say they trust that issue to Merchan’s discretion. Obviously, the DA is hedging his bets: He’d like to see Trump sentenced to prison, which would help the Democratic campaign, but, having caused the immunity problem by gratuitously introducing evidence of Trump’s official acts, Bragg realizes he will look even worse on appeal if he appears to be objecting to an adjournment of the sentence that would allow the immunity issue to be resolved first.
Merchan should grant the postponement now, there being no law-enforcement interest served by a pre-election sentencing — just a partisan political interest. But the judge is being cagey. He has told the parties that he won’t decide the immunity issue until September 16 and that he intends to press ahead with sentencing on September 18. That may not leave Trump sufficient time to persuade a state appellate court or a federal court to block the sentencing while Trump appeals Merchan’s immunity ruling. This is why Trump tried the removal gambit that failed yesterday — in the hope of getting a federal court to intervene.
So . . . the new developments. Trump has appealed Judge Hellerstein’s denial of the removal motion. It is unclear whether Trump’s counsel will be able to get the Second Circuit to grant him an expedited appeal, much less to block Merchan from sentencing Trump while the Second Circuit weighs the removal claims. (The law does not require the state court to stop acting on a case while a federal court considers a removal claim.)
Meanwhile, Bragg’s office sent a short letter to Merchan pointing out that, with Hellerstein’s having ruled, Trump’s removal gambit is no longer a viable rationale for postponing the sentencing. Nevertheless, Bragg continues to concede that the state has no objection to a postponement while the immunity issue is litigated. To be clear, though, the state is not asking for a postponement (although it should do so); it is content to leave that up to Merchan. Bragg plainly wants Merchan to sentence Trump while making it look like he was not advocating that Merchan sentence Trump.
For now, then, the September 18 sentencing remains scheduled. I see no indication that Merchan will voluntarily postpone it, even though he should. Trump has two weeks to find a court willing and authorized to make Merchan stand down.