In what appears to be a bid to ensure that President-elect Trump enters office as a formally convicted felon, Judge Juan Merchan has denied Trump’s post-trial motions and proposes to sentence him next Friday, January 10.
The bait for Trump to agree to this is that Judge Merchan is signaling that the sentence will be a conditional discharge – meaning the president-elect would face no prison time and no post-sentence monitoring (such as probation). Moreover, because the imposition of sentence and entry of the judgment would end the proceedings in the trial court, Trump would be free to commence his appeal of what would be 34 felony convictions on the charge of business-records falsification.
I do not believe Trump will agree to this; instead, I suspect he will seek an immediate appeal on the immunity claims that Merchan conclusively rejected in today’s 18-page opinion and order. It is not surprising that Merchan denied Trump’s immunity claims; he had already ruled against Trump on this point in an opinion issued on December 16.
NEW YORK JUDGE SETS TRUMP SENTENCING DAYS BEFORE INAUGURATION
In prior proceedings, Manhattan’s elected progressive Democratic district attorney, Alvin Bragg, appeared to acknowledge that Trump would likely have a right to appeal an immunity ruling against him prior to being sentenced. That is no doubt why, rather than push for a sentencing date, Bragg’s prosecutors proposed that the case be frozen – held in abeyance while Trump served his four-year presidential term. In that scenario, the case would theoretically to resume in 2029 (when Trump would be 82-years-old) with final presentencing rulings, the imposition of sentence and entry of the judgment of conviction, and the appeal.
In Friday afternoon’s ruling, Merchan rejected that proposal, claiming that he had a responsibility to sentence Trump prior to inauguration, lest what the judge frames as an important public interest in getting the sentencing done were undermined.
It is not clear to me that there is any such public interest. There seems, instead, to be the interest of Merchan – an activist Democrat who contributed to Joe Biden’s 2020 campaign against Trump in violation of state judicial ethics rules – to ensure that Trump is branded a convicted felon while there is still opportunity, pre-inauguration, to make that happen.
Nevertheless, Merchan appears to acknowledge that Trump still has cards to play. The opinion states, for example:
“This Court must sentence Defendant within a reasonable time following verdict; and Defendant must be permitted to avail himself of every available appeal, a path he has made clear he intends to pursue but which only becomes fully available upon sentencing. [Emphasis added.]”
Put aside how precious it is for this demonstrably hostile judge to express his deeply held concerns about the vindication of Trump’s appellate rights. Merchan must interject the word “fully” because, while Trump can only bring his complete appeal based on all claims of error arising out of the proceedings only after sentencing, he should be able to bring a partial appeal now targeted solely at Merchan’s immunity ruling.
Merchan then goes on to address Bragg’s proposal to hold the case in abeyance for four years: “[I]f the Court is unable to impose sentence before Defendant takes his oath of office [on January 20], then this may become the only viable option.”
Again, Merchan is clearly aware that Trump may be permitted to appeal the immunity portion of the ruling immediately. If that happens, then Merchan would, indeed, be “unable to impose sentence” before inauguration day – in which case Trump would not be a convicted felon upon entering the presidency.
What I find most remarkable about all of this is Merchan’s description of Trump’s offenses:
“Here, 12 jurors unanimously found Defendant guilty of 34 counts of falsifying business records with the intent to defraud, which included an intent to commit or conceal a conspiracy to promote a presidential election by unlawful means. It was the premediated and continuous deception by the leader of the free world that is the gravamen of this offense. [Emphasis added.] To vacate this verdict on the grounds that the charges are insufficiently serious given the position Defendant once held, and is about to assume again [i.e., the presidency], would constitute a disproportionate result and cause immeasurable damage to the citizenry’s confidence in the Rule of Law.”
Here, Merchan is swallowing whole Bragg’s portrayal of the case: We’re not merely talking about falsification business records; Trump conspired to steal the 2016 election – a conspiracy that succeeded!
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Now, let’s put aside that this is not what the indictment charged. Let’s put aside that it is a ridiculous claim – i.e., even assuming for argument’s sake that, as Bragg claimed, Trump’s non-disclosure agreement (NDA) payment of $130,000 to Stormy Daniels was a campaign expense that had to be reported to the Federal Election Commission (it wasn’t), it still would not have had to be reported until after the election – meaning: it was not illegally concealed from voters. And let’s put aside that, because Merchan (in violation of due process) did not require a unanimous verdict on the crime Trump was supposedly concealing by falsifying his business records, it cannot fairly be said – as the judge claims – that 12 jurors unanimously found that he conspired to steal the election.
Ignoring all of that, if one truly believed, as Merchan says he believes, that Trump was proven to have conspired to steal a presidential election – abusing his status, the judge portentously adds, as “the leader of the free world” – then how could a responsible judge in good conscience sentence Trump to a no prison, no probation sentence? As described by Merchan, this was a heinous crime for the ages.
Of course, Merchan doesn’t really believe that. How could he? This was, at most, a trivial, time-barred misdemeanor offense of record-keeping regarding a legal transaction (NDAs are legal and common) that Bragg – with enormous help from Merchan – gussied up into 34 felonies by purporting to enforce federal campaign finance laws that a state prosecutor has no authority to enforce (and that the relevant federal authorities concluded Trump didn’t violate).
The American people just elected Donald Trump president by not only an Electoral College majority but by a popular-vote edge. The public did so knowing full well about Bragg’s absurd criminal case in Manhattan.
Clearly, there is no public clamor to see Trump sentenced prior to taking the nation’s highest office. There is, instead, a spiteful New York progressive Democratic interest in branding the Republican president-elect a convicted felon.
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