He has a good chance of getting the case reversed on appeal — but he can’t appeal until after Judge Merchan sentences him.
He has a good chance of getting the case reversed on appeal — but he can’t appeal until after Judge Merchan sentences him.
J udge Juan Merchan this morning granted a joint application by President-elect Trump and Manhattan District Attorney Alvin Bragg for a one-week stay in the proceedings of the criminal case Bragg brought against Trump — until November 19.
As detailed here, today was the day Judge Merchan, under a schedule he had set for himself, was to rule on the Trump defense team’s motion to vacate the guilty verdicts returned against him by a jury in May. Trump was found guilty on 34 counts of business-records falsification.
There were many errors in the trial and pre-trial stages that could be grounds for reversing the guilty verdicts. Of most immediate importance, however, are two developments.
First, a month after the verdicts, the Supreme Court issued its decision in Trump v. United States (in connection with the federal 2020 election-interference indictment against the now-president-elect), holding that presidents are presumptively immune from prosecution for official presidential acts — and that prosecutors may not use evidence of official presidential acts to prove crimes. This created a problem for the state and the court because, over Trump’s vigorous objections, Bragg offered and Merchan permitted the testimony of two White House staffers about Trump’s official acts — mainly, his practices in running the Oval Office as president. The state also offered testimony suggesting that, as president, Trump had directed his then–attorney general to bury an investigation by the Federal Election Commission (FEC) into payments in connection with nondisclosure agreements (NDAs) with two women who claimed to have had extramarital affairs with Trump in the past. (To be clear, I believe that evidence was not credible: a. The pertinent testimony came from Michael Cohen, a convicted fraudster and perjurer; b. it was wholly uncorroborated; and c. the FEC is not part of the DOJ, and an attorney general has no authority to prevent it from conducting an investigation.) It is likely that much if not all of this testimony about Trump’s presidential acts should have been barred under the immunity principles laid out by the Supreme Court.
Second, Trump was elected president last week. This has triggered the Justice Department to close its cases against Trump, based on long-standing DOJ Office of Legal Counsel (OLC) guidance holding that a sitting president may not be indicted or prosecuted. Trump’s election also triggers the likelihood that state criminal proceedings against him must be suspended while he is president. This owes to the theory that, under the Constitution’s supremacy clause, state law-enforcement authorities may not take actions that impede the federal government in carrying out its legitimate functions. This is an issue of first impression since no American president has ever faced state criminal prosecution while in office.
Because of these complications, the parties sought a week’s delay (as elucidated in the email correspondence made public by Judge Merchan this morning). Judge Merchan granted the request. The judge gave the DA’s office until 10 a.m. next Tuesday, November 19, to file “your view of appropriate steps going forward.”
Interestingly, this mirrors the action of Judge Tanya Chutkan, who is presiding over the federal election-interference case in Washington, D.C. When Biden-Harris DOJ special counsel Jack Smith asked Judge Chutkan to cancel all pending proceedings in the case, Chutkan directed Smith to submit by December 2 his view of what should happen next. I anticipate that on or before that date, Smith will file a motion to dismiss (under Rule 48, Fed. R. Crim. P.) — and that Chutkan will grant it.
A little technical background may help us navigate what is happening in the Manhattan case.
While Democrats and other anti-Trumpers like to refer to the president-elect as a “convicted felon,” he is not one. As a matter of law, the judgment of conviction is not entered on the court record unless and until the judge (a) denies any post-trial motions to dismiss or vacate the guilty verdicts and (b) imposes sentence. Trump’s post-trial motion to dismiss or vacate the verdict is still pending, and sentence has not been imposed. Hence, Trump is not a convicted felon. Obviously, he does not want to be one, and he does not want Merchan to sentence him.
But it’s a pick-your-poison situation for the president-elect. He knows he has a good chance of getting the case reversed on appeal because there are many grounds to claim reversible error. Yet he can’t get to appeal those grounds until after Merchan sentences him and enters the judgment of conviction — and, to repeat, Trump doesn’t want that to happen.
Potentially, there is a narrow path out of this dilemma for Trump, but it is unlikely to succeed: He would have to convince Merchan to grant his motion to vacate the verdicts and dismiss the case based on the immunity violation. If pressed on that point, I believe Merchan would side with DA Bragg and rule that the immunized evidence, while it should not have been admitted, was harmless error because other evidence against Trump — private conduct not amenable to an immunity claim — was overwhelming. (To be clear, I am describing what I think Merchan would do, not what I believe; to my mind, the DA’s case was underwhelming.)
Even so, that is the path Trump’s team is taking: They’ve asked asked Merchan to vacate the jury verdict and dismiss the case, largely based on the immunity ruling. (As I explained in yesterday’s column, linked above, Trump is placing heavy reliance on immunity because a ruling against him on that issue would probably be immediately appealable, enabling him to delay the sentencing and entry of the judgment of conviction while the appeal proceeds, which could take years.) In the alternative, Trump asks the judge to “stay all proceedings before this court,” according to the correspondence. (See ADA Matthew Colangelo’s November 10 email to Judge Merchan.)
I believe Trump is calculating that the DA’s office may continue fighting him on dismissal but agree to a stay that would freeze the case until his presidency concludes. At that point, Trump would be an 83-year-old former American president hopefully coming off a successful second term; it would be sensible for whoever the DA was to drop the case.
Bragg may be inclined to agree to the stay, I suspect. The correspondence indicates that the DA’s office understands that, while it has an interest in defending the jury verdict, that interest must be weighed against the proper functioning of the presidency. Bragg knows that the Justice Department in the incumbent Democratic administration that brought two indictments against Trump is in the process of closing those cases, in a nod to the aforementioned OLC guidance. Bragg could simply say that he is drawing a conclusion similar to that drawn by the DOJ: The constitutional interest in the president’s ability to execute his responsibilities without concern about criminal prosecution militates in favor of suspending further proceedings.
Plus, to be frank, Bragg’s real reason for bringing the case was political — i.e., to bruise Trump as a presidential candidate, in furtherance of the Democrats’ lawfare strategy. That strategy proved to be counterproductive for Democrats and the prosecution has, in any event, finished serving any politically useful purpose. At this point, if the proceedings are suspended, the ambitious Bragg, when he eventually seeks higher office, can boast that he convicted Trump of multiple felonies (even if that’s not technically true). By contrast, if the case moves ahead and Trump ultimately appeals, the convictions could be resoundingly reversed, which would be humiliating for the DA.
Of course, the best thing for all concerned would be for Bragg, rather than agreeing to a stay, to move to dismiss his case — just as DOJ appears poised to do in its prosecutions of Trump. It’s possible that Merchan is subtly asking Bragg to move for a dismissal by giving him a deadline to explain his view regarding further proceedings, just as Judge Chutkan gave Jack Smith a deadline in anticipation that Smith will move to dismiss. I just have a hard time believing Bragg would move to dismiss at this point; after all, in his mind at least, he already won the case.
We’ll have more insight next week about where all this is headed. My bet is that we’ll see a delay deal come together: Judge Merchan will grant a stay of the proceedings until Trump’s presidential term ends, which spares the judge the need to grapple with the Supreme Court’s immunity decision and Trump’s other claims of error. Trump will not be sentenced and no judgment of conviction will be entered. In six months, we’ll remember none of this, and in four years the case will quietly disappear.