{UAH} FW: THE LAST STAND OF ANTI-TRUMP LAWFARE

The Last Stand of Anti-Trump Lawfare

In the prosecution brought by the borough’s elected progressive Democratic district attorney, Alvin Bragg, Judge Juan Merchan — an activist Democrat who refused to recuse himself and has been hostile to Trump throughout the proceedings — must rule on the president-elect’s post-trial motion to vacate the jury’s 34 guilty verdicts. I won’t rehash the numerous reason why the verdicts should be thrown out (see, e.g., here). Rather, let’s just stick with the issues immediately in front of us: immunity, appeal, potential federal court intervention, and sentencing.

Immunity

Judge Merchan set for himself a deadline of November 12 (tomorrow) to rule on Trump’s post-trial motions. These include a claim that Bragg’s case violated the Supreme Court’s immunity ruling, which was issued in July, about a month after Trump was found guilty. While Trump’s team is right about this, I don’t believe it is in the top five most egregious errors in warranting reversal. Yet, it may be the most consequential because — as we saw in the federal election-interference case against Trump that prompted the Court’s immunity ruling — a trial court’s determination that a defendant is not immune is immediately appealable. (Most claims of error in criminal cases can only be appealed after all the trial court proceedings — including sentencing — are concluded.)

In the schedule Merchan set for himself when he agreed to postpone proceedings in the case until after the election, once he rules by tomorrow on immunity (among other post-trial claims), he anticipates imposing sentence in two weeks — on November 26. (Merchan qualified that, obviously, he’ll only impose sentence if he rules against Trump on the post-trial motions; but he has reliably ruled against Trump on every significant issue to this point, and no one expects an exception now.)

Appeal

So, let’s assume Merchan denies Trump’s post-trial motions and reaffirms that he intends to impose sentence on November 26. What happens? Well, Trump will ask that sentence be delayed so he can have an opportunity to appeal Merchan’s ruling insofar as immunity is concerned.

Here are the competing arguments on this point.

Trump will say immunity rulings are immediately appealable for two reasons. First, the courts have regarded them as such. Second, unlike most trial errors, the defect in immunity is forcing the immune person to go through criminal proceedings in the first place; ergo, nothing further should happen in the case until immunity is fully appealed — meaning in the New York appellate courts and, potentially, the U.S. Supreme Court.

Now, it’s possible that Bragg will agree with this (he did, after all, agree with Trump’s team that the proceedings should be postponed until after the election because Trump would probably have a right to appeal any immunity ruling against him, which would delay sentencing until well after the election in any event.)

Nevertheless, if Bragg wants to contest this point, he will argue that this is a highly unusual case in which immunity did not become a truly colorable issue until after the trial. Usually, a person who has an immunity claim raises it pretrial; here, however, at the pretrial stage, Trump’s immunity claim was threadbare: The principal conduct at issue was private behavior that did not involve official presidential acts. Trump really did not have a colorable immunity claim until (a) Bragg (foolishly) introduced evidence of Trump’s official acts, including calling as witnesses two Trump White House staffers, and (b) the Supreme Court issued its immunity ruling weeks after the trial was over — concluding, to Bragg’s chagrin, that presidential acts are not only presumptively immune from prosecution but may not even be used as evidence to prove crimes that are essentially based on private, non-immune behavior. Bragg could thus argue that, because the trial has already happened and all that remains for the trial court to do is sentence Trump, it would be more efficient for Merchan to impose sentence and then have the whole case, including immunity issues, go up on appeal, rather than to delay sentencing while immunity is separately litigated.

To my mind, Trump’s team would have the better of such an argument, but (like much else in this case) it’s an unprecedented situation as far as I can tell. We can’t say for sure how it will be resolved.

We can safely assume that, unless Merchan postpones the sentencing when he issues his immunity ruling, he has already decided to deny any request by Trump to delay sentencing while the immunity ruling is appealed. Otherwise, why would Merchan have set a sentencing date in the first place?

Merchan probably set sentencing for two weeks after the immunity ruling to give Trump an opportunity to argue to the higher New York courts (the Appellate Division and, ultimately, the Court of Appeals — the state’s highest court) that sentencing should be postponed while he appeals Merchan’s immunity ruling. I think Trump could prevail there, but it’s no sure thing.

Potential Federal Court Intervention

Trump could also seek intervention from the federal courts. He is in a bind here, though. After Bragg indicted him in 2023, Trump sought to remove the case to federal court, arguing immunity (among other claims). He was rebuffed, however, by Judge Alvin Hellerstein, a nonagenarian Clinton-appointee who is a senior judge of the Southern District of New York. I’m sure Team Trump had their reasons, but they did not appeal Hellerstein’s ruling. (I suspect they thought doing so might have hurt Trump’s position in the federal election-interference case, in which Trump’s immunity claim was much stronger because that case was clearly based on presidential acts.)

Since then, Trump has tried to go back to federal court to get the verdicts vacated, largely based on the Supreme Court’s immunity ruling; but Judge Hellerstein curtly rebuffed him. On September 12, the Second Circuit declined to grant an emergency stay of Hellerstein’s refusal to remove the case — reasoning that, because Merchan had, by then, delayed the state sentencing until after the election, there was no emergency. But the Circuit could reconsider that position if Merchan signals this week that he is pressing ahead with a November 26 sentencing.

So we are at an impasse until Judge Merchan decides the immunity issue and indicates whether he intends to proceed to sentencing.

The practical consequence of all this is that it could take well over a year to litigate the immunity claim on appeal. By then, President Trump will have been sworn in. I expect that his Justice Department will argue that, under the Constitution’s supremacy clause, state-court criminal proceedings against the sitting president should be suspended until he is out of office. (I believe the DOJ will take that position with respect to both the Manhattan and Fulton County, Ga., cases.) While there is a presumption against federal interference in state criminal proceedings, the supremacy clause has been held to forbid state-enforcement actions that would prevent the federal government from executing its legitimate constitutional functions.

It would be unfortunate for the country — especially given the silliness and unabashed partisan selectiveness of Bragg’s case — if New York authorities fought the feds on this point. The state should agree to hold further proceedings in abeyance until Trump is out of office. This would not put him above the law; it would defer to the will of the people, who elected Trump in full knowledge of the New York case, while maintaining the state’s discretion to renew proceedings once Trump is no longer in office.

Finally, let’s think briefly about sentencing, even though I expect (and hope) that it will not be an issue.

Sentencing

The point of Bragg’s case was to bruise Trump in the electorate’s eye during the presidential campaign. That is why Bragg not only brought a stale case that wouldn’t have been brought against anyone other than Trump, but then inflated it into an absurd claim that Trump conspired to steal the 2016 presidential election from Hillary Clinton. Judge Merchan indulged Bragg’s exaggeration of Trump’s conduct. Hence, because the point of lawfare was to make Trump unelectable, I believed that — if Trump was sentenced prior to Election Day — Merchan would impose a prison sentence. That might well have troubled voters (although, judging by how the public appears to have reacted to the Democrats’ lawfare strategy, it might well have worked to Trump’s advantage).

Note: Trump was not actually going to be imprisoned. The business-records charges of which he was found guilty are not serious enough to warrant immediate remand upon sentencing; under New York law, Trump would have remained at liberty pending appeal. My assessment that Merchan would impose a prison term factored in that Merchan knew he wouldn’t actually be sending Trump to prison; moreover, Merchan knew the convictions and sentence could well be reversed on appeal, so Trump might never go to prison based on Bragg’s charges. Consequently, a preelection imposition of a sentence of incarceration would have been sheer Democratic campaign demagogy: How could you elect a convicted felon facing a prison sentence?

But now that the election is over, and the lawfare has been rejected by the public, I believe Merchan’s incentives are different. He is still a partisan Democrat and will want to impose a punitive sentence of some kind on Trump. But Merchan also knows this is New York City, where Bragg would never have brought such a case against other defendants, and where serious criminals habitually evade incarceration sentences for significantly more serious crimes. I believe there is now a chance, then, that Merchan, if he does sentence Trump, imposes nothing more than a small fine — perhaps adding that, while he personally believes the crimes at issue were serious, he is deferring to the decision of American voters to entrust Trump with the presidency and going out of his way not to create obstacles to Trump’s capacity to focus on the daunting duties of the presidency.

At least, that’s what I hope.