The once-immense landscape of Donald Trump’s potential criminal liability has been reduced to a small patch of turf defined by whether his conviction on 34 felony counts will stand. Trump is now engaged in an all-out campaign to sweep it away. To prevail, he needs to get a higher court to halt the sentencing that trial judge Juan Merchan has ordered to take place this Friday, January 10. On Tuesday, he lost round one, when the appellate division of the New York state courts refused after a brief hearing to grant his motion for an emergency stay.
Merchan set sentencing after he rejected Trump’s motions for a new trial or to set aside the jury verdict based on Trump’s claims of immunity. At the same time, Merchan strongly signaled that he would impose no criminal penalty and instead give the former president an unconditional discharge as provided for (but rarely doled out) under New York law—no jail, no fine, no collateral consequences whatsoever.
Many Trump antagonists grumbled that Merchan decided to impose what in effect is a nonsentence. But given the state of play, his decision was Solomonic.
It was a foregone conclusion that Trump would face no jail time for the convictions, and any actual penalty—including probation, which carries significant deprivations of liberty for the convict—would almost certainly have been set aside by a court at the beginning of Trump’s presidential term.
What remained was the fact of conviction, the all-important scarlet letter marking Trump as the nation’s only felon president. Here Merchan was at his most persuasive and assured. He explained why Trump’s effort to clean the state would undermine the rule of law and signal that the law favors the powerful. We can expect more of a stern lecture from Merchan to Trump on Friday if the sentencing proceeds.
But that’s not what Trump is planning. Almost immediately after Merchan’s ruling, Trump let loose with a series of fire-breathing social media rants, including a claim that if the ruling were allowed to stand, it “would be the end of the Presidency as we know it.”
Then Monday, he asked Merchan to indefinitely stay the hearing while he pursues appellate remedies. Merchan refused in a back-of-the-hand two-page order. That set the stage for a run at the appellate courts that Trump began Monday afternoon.
For Trump, it’s a beat-the-clock battle, where victory is defined not by getting Merchan’s opinion reversed—there’s not nearly enough time for that before the inauguration—but by halting Friday’s sentencing hearing. That paramount goal of Trump’s is at once easier and harder to obtain than an outright reversal of Merchan’s holdings.
It is easier because Trump only has to get a higher court to think there’s enough to his legal claims that such a court would want to have a chance to give those claims a full analysis, and therefore need to keep the sentencing from going forward. As so often in recent years, in which he has been much more lucky than good, Trump’s legal arguments are weak, novel, or both. But he doesn’t need to win his case; he just needs to persuade a court to stay—i.e., halt—the sentencing while it considers his legal claims. And he has three courts to try—New York’s intermediate court, New York’s highest court, and the ultimate resort of the U.S. Supreme Court, which of course has saved his skin before.
It is harder, however, because of the legal requirements to secure a stay. Trump has to establish that (1) he is likely to prevail on the merits, (2) the balance of equities favors him, and (3) if the court doesn’t take the case, he will suffer irreparable injury. Otherwise, the standard response of the legal system would be that he can bring any challenge to his conviction he wants to—but after sentencing.
Trump offers two arguments that he deserves special treatment.
The first is that as president-elect, he should have the benefit of the legal doctrine, anchored in a memorandum from the Department of Justice Office of Legal Counsel, that sitting presidents can’t be prosecuted.
That’s a lousy argument. The clear line in the memo is between the president and everyone else. Trump is part of everyone else, and not for arbitrary reasons. We have only one president at a time; one person constitutionally required to take care that the laws be faithfully executed. Today, that is Joe Biden.
The second argument, also a stretch, is that claims of immunity are entitled to immediate “interlocutory” appeals. The problem here is Trump’s claim of immunity is poor, because the conduct for which he was convicted—paying hush money to keep the lid on an affair that could have derailed his 2016 candidacy, and falsifying business records to keep it concealed thereafter—was about as unofficial as it gets.
Moreover, as the court has explained, the reason for the immediate appeal is to save the possibly immune official from possibly long and draining “extended proceedings” that interfere with their official duties. A short sentencing before Trump is even president doesn’t fit that bill.
Trump also tries a nuanced version of that argument based on the Supreme Court’s holding that the immunity doctrine prevents even the introduction of evidence of immune conduct, which Trump said happened at his trial. But even if that evidentiary claim were well taken, it wouldn’t justify a stay today. Any harm to immunity principles is already done.
So Trump’s frantic effort should fail. It’s the combination of the crazy state of play, and the fact that courts sometimes reason loosely about a stay where they are interested in the underlying issue, that gives Trump hope.
But our hope, the hope of patriots and partisans of the rule of law, has to be for the opposite result. Beyond galling, Trump’s reelection is a deep wound to constitutional rule; and his never-ending effort to rewrite the history of his criminal conduct is an assault on truth, the cornerstone of free thought in a democratic society. Even as Trump ascends to an office he legitimately won, it is critical that we fight to ensure that the verdict of history comes, however slowly, to be accurate, and squarely against him.
