Why Trump’s Manhattan Case Is Headed for a Four-Year Freeze

I n yesterday’s column, I sketched out why I believe President-elect Trump’s Manhattan prosecution by District Attorney Alvin Bragg is going to be suspended for four years — i.e., until the end of Trump’s presidency, in January 2029. This seems like a near certainty to me now, having looked at competing proposals for next steps, the first in yesterday’s letter from DA Bragg to Judge Juan Merchan and the second in a letter that the president-elect’s lawyers sent Judge Merchan today. (I have not yet seen the letter, but there is a thorough report on it by Fox News’s Brooke Singman.)

Bottom line: Trump is making a new motion to dismiss the case, based in part on immunity principles. I don’t think the motion is legally meritorious. Nevertheless, it would assure that further proceedings before Judge Merchan would be suspended until Trump leaves office, presumably in 2029. That’s because of the schedules the parties have proposed for briefing, coupled with the fact that immunity rulings can be appealed immediately — meaning, once he denies the motion, as he is sure to do, Judge Merchan will not be able to sentence Trump or enter the formal judgment of conviction (the thing that would make Trump a convicted felon) until after Trump’s appeals of the dismissal motion have run their course.

Some background. Up until now, we’ve been focused on Trump’s pending post-trial motion to vacate the jury’s guilty verdicts (on 34 counts of business-records falsification). The president-elect’s attorneys filed that motion after the Supreme Court issued its immunity decision on July 1 (about a month after the trial ended).

That motion is still pending, and it complicates matters because, again, it relies heavily on the Supreme Court’s immunity ruling and portends an immediate appeal (what the law calls “interlocutory” appeal). Not to belabor the point, but immunity is different because, unlike most other criminal law claims of error, a defendant needn’t wait to be tried, found guilty, and sentenced before appealing on the grounds that he lacks immunity from prosecution. So, assuming (as I do) that Judge Merchan sides with Bragg and denies Trump’s pending motion, Trump should be able to appeal that right away to the New York appellate courts and — if he loses there — perhaps the U.S. Supreme Court.

Now, it turns out, there will be an additional layer of delay: Trump’s new motion to dismiss, which was adumbrated in Bragg’s letter and is further outlined in Trump’s submission. (Trump’s letter describing the motion is a request that Merchan grant him permission to file the motion. That’s a salient technicality for reasons I’ll come to.)

Trump’s motion is more a political argument than a legal one. In essence, he is saying that his election by the voters across the country “supersedes” Bragg’s political motivation for bringing the case. That, in conjunction with how absurd Bragg’s case is and how rife with error the proceedings have been, could be a good argument for why Bragg should exercise prosecutorial discretion by agreeing to a dismissal — for the good of the country. Trump argues it would remove a cloud hanging over the presidency. But discretion is called “discretion” because it’s not a legal mandate; it’s a choice available to Bragg, among others.

Legally, one’s status as president of the United States is not a defense to a criminal charge. If it were, the president would be above the law, which in our system he is not. But in deference to the presidency’s awesome responsibilities and high public trust, the law provides various protections: Presidents may not be prosecuted while they are in office, nor may a president be indicted or civilly sued based on official presidential acts. But a president’s term in office is not a legal basis to dismiss charges or undo guilty verdicts; it is a basis to suspend the proceedings, to avoid having them divert the president’s attention from his weighty duties while he is in office.

Let’s put the legal merits aside, though. As a practical matter, Trump’s motion, which relies in part on immunity, means that the proceedings are going to be suspended — frozen for four years where they stand right now.

Bragg has said that he intends to oppose Trump’s motion to dismiss the case, but he is open to — I’d say he is inviting — the president-elect’s motion to stay all proceedings while his latest motion to dismiss is litigated. In his letter, Bragg suggested that Merchan should direct the defense to file Trump’s new dismissal motion promptly and that the DA’s office should be directed to respond by December 9. Moreover, Bragg all but concedes that Trump cannot be subjected to other proceedings in the case (which would include sentencing and the formal entry of the judgment of conviction) until after Merchan’s anticipated denial of Trump’s new motion is fully litigated on appeal — which could take years.

Recall that I said a moment ago that Trump’s letter today was, technically, a request for permission to file his new dismissal motion — it’s not the actual dismissal motion (even though it explains what the dismissal motion will contend). Why is that important? Because, in the letter, Trump’s lawyers suggest that he not even be required to file his new dismissal motion until December 20. Bragg presumably would not respond until after the holidays. That is, by the time this is fully submitted, with or without Merchan having ruled on it, Trump will be on the cusp of inauguration if not already in office. And once he’s in office, as Bragg suggested (in a portion of his letter that I excerpted yesterday), the case could be suspended for four years.

As I said yesterday, that’s where things are headed. The DA has assessed that the president-elect would prefer a four-year suspension — i.e., he’d prefer to enter office not under a judicially pronounced criminal sentence and not tagged with a criminal conviction — to pressing ahead with an appeal of the full case, because that would require him first to be sentenced and formally convicted.