My hope is that common sense prevails.
My hope is that common sense prevails.
P resident-elect Donald Trump’s guilty verdicts should stand and the proceedings against him be suspended for the four years of his imminent term as president. That is the position taken by prosecutors in the office of Manhattan’s elected progressive-Democratic district attorney, Alvin Bragg, in a submission filed Tuesday with Judge Juan Merchan. The state was responding to Trump’s motions to vacate the verdicts and dismiss the indictment against him.
Background
Trump was found guilty in late May on 34 counts of falsifying business records with the fraudulent intent to conceal another crime. On July 1, the Supreme Court ruled that presidents, including former presidents, have presumptive immunity from criminal prosecution for official presidential acts and that prosecutors may not use official presidential acts as evidence in criminal cases. (As we’ve discussed many times, that ruling, Trump v. United States, was in connection with a separate federal indictment against Trump, which has since been dismissed.)
It is typical for defendants to make post-trial motions to throw out verdicts and dismiss charges, but not for the Supreme Court to issue an intervening decision that bears on the matter. While the Manhattan charges against Trump involved private conduct (i.e., not official presidential acts), Bragg chose to use — and Merchan permitted — evidence of presidential acts in proving the charges. Trump has thus contended that the guilty verdicts should be vacated on that ground (in addition to claiming many trial errors that I have summarized several times — see, e.g., here). Bragg counters that the admission of the official-act evidence was at most harmless error and that Trump’s guilty verdicts should stand.
The emergence of a significant immunity issue complicates what would otherwise have been the procedurally straightforward matter of imposing sentence and officially entering the judgment of conviction on the court record. Immunity is one of the few criminal law claims that may be immediately appealed. Hence, even assuming Judge Merchan were to side with Bragg and rule against Trump (as he has done on every important issue in the case), Trump should be able to seek immediate review in the higher courts (the Appellate Division and ultimately the New York State Court of Appeals). That would prevent Merchan from imposing sentence until that process played out. That is, even though a jury has found him guilty, Trump would technically not be a convicted felon because the judgment of conviction does not get entered on the public record until sentence is imposed.
Meantime, as you may have heard, Trump won the presidential election.
Post-Election Developments
Upon being elected, Trump sought and received Merchan’s permission to file yet another motion to vacate the verdict and dismiss the case. He now argues that his status as president-elect and, soon, president mandates that the case be dismissed. His new motion picked up additional ballast when the federal prosecutor, Jack Smith, dismissed both indictments against Trump (in Washington, D.C., and south Florida). The Justice Department reasoned that this was required by long-standing Office of Legal Counsel (OLC) guidance that a sitting president may not be prosecuted.
Trump’s situation is novel because, in the Nixon and Clinton situations, the question was whether charges could be brought against a president while he was in office; Trump, by contrast, would be entering office under criminal indictment. Regarding Trump, Smith and the DOJ construed the OLC guidance — particularly its concerns about the anxiety, distraction, and stigma that pending charges would cause a president as he tried to execute his awesome responsibilities — to require dismissal of the cases, rather than holding them in abeyance during the presidential term.
The federal cases were thus dismissed without prejudice. Theoretically, this means the DOJ could try to reindict the cases after Trump leaves office; as I’ve pointed out, however, the cases by then would be time-barred under the five-year statute of limitations. (Clinton-era OLC guidance speculated that a prosecutor might be able to seek an equitable waiver of the statute of limitations from a court; for what it’s worth, I do not believe that would happen.)
Naturally, Trump contends that the rationale for Smith’s dismissal of the federal indictments against him also requires dismissal of the Manhattan indictment — with the jury verdicts vacated.
There Is No President-Elect Immunity from Criminal Proceedings
In today’s responsive submission, Bragg’s office correctly argues that there is no president-elect immunity. The state concedes that a sitting president has immunity from prosecution during his presidency and that, under the Court’s ruling in Trump, presidents have at least presumptive immunity for their official presidential acts. But the status of president-elect provides no immunity from criminal proceedings. That is to say, what’s preventing Trump from being sentenced at this point is the immunity litigation (the availability of immediate appeal), not the fact that Trump won the election
The Dismissal of Federal Cases Does Not Require Dismissal of the State Case
I believe Bragg is also right in contending that Smith’s dismissal of the federal cases does not require dismissal of the state case. To begin with, the cases are not in the same posture: The federal cases were indicted but never brought to trial; the state case was tried, the jury rendered guilty verdicts, and all that remains to be done is the imposition of sentence and entry of the judgment of conviction. (It is irrelevant, on this point, that there were many errors committed in the proceedings, including the trial, that may — I think should — result in reversal.)
Moreover, New York State is a separate sovereign and is not bound by DOJ/OLC guidance. The Supreme Court has never confronted the question of whether a sitting president may be indicted or prosecuted based on private conduct, nor has it decided the less problematic question of whether it is permissible to suspend criminal proceedings (based on either private conduct or official acts) during a president’s term, with the option of resumption once the president is out of office.
On that score, as I contended when Smith dismissed the federal cases, the least convincing aspect of his reasoning was the claim that a president would be unduly compromised in performing his duties by criminal charges that were being held in abeyance. The immunity from prosecution for a sitting president is not supposed to put the president above or beyond the law; it is a deference to the chief executive’s weighty responsibilities and should thus be limited to the period of his exercising those responsibilities.
Furthermore, with respect to Trump specifically, he campaigned for the presidency on the claim that Democratic prosecutors had indicted him as a political vendetta, and he won the election. Ergo, it is risible to claim that he would be compromised by the mere pendency of these charges — allegations that the American people and the world are already familiar with and that haven’t cramped Trump’s style in the slightest. (Did Trump looked stigmatized to you while world leaders fawned over him this past weekend at the reopening of Notre Dame Cathedral in Paris?)
With no dispositive jurisprudence on the precise question presented, it is unsurprising that the DOJ — a component of the executive branch that customarily defends the presidency — would err on the side of broad presidential immunity. But a state district attorney, who is not part of the federal government and has no duty to defend the presidency, is correct to argue that the DOJ’s conclusion that dismissal was required could be wrong and is not, in any event, binding on the state.
Bragg’s Proposed Alternatives to Dismissal
Bragg thus argues that there are alternative remedies that would protect the state’s interests while not undermining Trump’s effectiveness as president.
He proposes two possibilities. First, the criminal proceedings could be suspended during Trump’s term, to be resumed when he leaves office (presumably in 2029). Second, and more inventively, Bragg suggests that the court could analogize Trump’s situation to one the law refers to as “abatement-by-death.” In that scenario, according to some courts, it is proper to terminate the criminal proceedings because the accused has died, but the judge need not vacate any jury verdict or dismiss the indictment.
To my mind, the second proposal is a bad idea. At this point, Trump is challenging the guilty verdicts. And he has extremely colorable grounds for appeal that could result in reversal of the trial result and dismissal of the case. That appeal (along with the sentencing and entry of judgment that would finally trigger such an appeal) is being delayed at the moment because Bragg recklessly infected the trial with evidence of official presidential acts — under circumstances in which he knew the Supreme Court was considering the propriety of introducing such evidence and might well hold (as it did) that Trump had immunity.
If Bragg wants to dismiss the case (as I believe he should, though I know he won’t), he should dismiss all of it, including the guilty verdicts. Ditto Merchan. But the validity of the guilty verdicts and the charges in the indictment are hotly disputed by Trump with good reason. They should not be permitted to stand as a final result — as if they were the judgment of history — when the judgment of conviction has not even been entered and Trump has not had the opportunity to challenge them on appeal.
The DA’s Heated Accusations against the President-elect
There’s no point addressing Bragg’s rebuttal of Trump’s claims about Judge Merchan’s bias, the weakness of the evidence, and various legal irregularities regarding the charges and the prosecution’s theories of the case. No one expects that Merchan is going to reverse himself on those matters — that’s for appeal, maybe someday.
With Trump having won the election and being poised to enter the nation’s highest office, it is jarring to read Bragg’s synopsis of “the history, character, and condition of the defendant.” In this section of the brief, the district attorney accuses the soon-to-be president of contempt of court; of “threatening witnesses, investigators, prosecutors, judges, jurors, court staff, and their family members”; and of being generally “malicious” and “abusive” in this and other cases. This is no doubt catnip for Bragg’s progressive-Democratic Manhattan base; I doubt most of the country would appreciate it — especially those who voted for Trump based, at least in part, on the belief that Bragg’s farcical, arrantly politicized prosecution was a pitch-perfect example of what offended them about Trump’s Democratic opposition.
What Happens Next?
Bottom line: I expect that in the coming days, Judge Merchan will deny Trump’s motions to vacate the jury verdict and dismiss the indictment (the motion made after the Supreme Court’s immunity ruling and the motion made post-election). Merchan will also side with Bragg in finding that there was no reversible error in the introduction of evidence of Trump’s official acts as president — i.e., the judge will reject Trump’s immunity claims.
Bragg will probably signal reluctant agreement that Trump should be able to appeal the immunity ruling immediately, and Merchan will postpone sentencing while that appeal is pending. It would be unseemly for Merchan to try to barrel ahead and sentence Trump before he is inaugurated; there’s no good legal reason to do that, the immunity appeal would be a good legal reason not to do it, and I don’t think the appellate courts would allow it.
Arguably, this would mean that jurisdiction over the case would pass from Merchan to the appellate courts; therefore, Merchan would not need to rule at this stage — or perhaps even be permitted to rule — on what should happen to the case while Trump is president. If Merchan is inclined to opine on this point, however, we should anticipate that he’ll agree with Bragg’s proposal that the proceedings be suspended during Trump’s presidency.
If I’m correct, Trump will rightly regard that as a win. He would enter office with no sentence imposed, no judgment of conviction (i.e., he’s not a convicted felon despite the jury verdicts), and with little likelihood that the case would resume in 2029, when Trump will be nearly 83 years old. Even if it did resume, it would pick up either with a resumption of the immunity appeal or, if that’s been resolved, with the imposition of sentence (which would be minimal and stayed pending appeal), the entry of judgment, and then full appeal. That could take years and, I believe, would result in reversal of Trump’s convictions and any sentence.
Again, my hope is that common sense prevails and we never get to that point. But this is Alvin Bragg we’re talking about, and if he wins reelection next year, he could still be Manhattan’s DA when Trump’s presidency ends.