Judge Juan Merchan was expected to decide Tuesday whether to ignore Donald Trump’s guilty verdicts in New York. Instead, the only criminal case in which Trump is on trial is postponed again, and now he may not be convicted before he takes office — or ever, if the newly elected president gets his way.
As with the two federal cases that inevitably end up in the legal garbage dump, the reason for this latest delay is Trump’s presidential victory. But the state case in New York is not only in a different position than the federal cases, but also the state case in Georgia, raising new questions about what will happen in the coming weeks and possibly years in the so-called hush money case.
To summarize the action in New York, in May a jury found Trump guilty of 34 felony counts of falsifying corporate records for covering up a scheme related to the 2016 presidential election. He was scheduled to be sentenced on July 11, but then the Republican-appointed majority of the Supreme Court issued the immunity ruling on July 1. Trump’s lawyers cited the ruling to argue that the verdicts should be overturned and the charges dismissed. trial and in the grand jury conflicted with the Supreme Court’s ruling. Merchan postponed sentencing until September and then until November 26 because of the election. He set Tuesday as the date on which he would decide whether to overturn the verdicts or dismiss the case.
But Trump’s lawyers asked Manhattan prosecutors to agree to pause the proceedings because of Trump’s impending return to the White House. Prosecutors acknowledged the unprecedented circumstances and told Merchan that the case “requires careful consideration to ensure that any further steps in these proceedings appropriately balance the competing interests of (1) a jury verdict of guilt following a trial that would establish the presumption of has regularity; and (2) the Office of the President.” They asked Merchan to give them until November 19 (a week from today) to advise the judge on how they want to proceed. He agreed.
What happens now? It is up to the parties and, if necessary, the courts. Trump’s lawyers want the case to be dismissed completely. It is unclear what District Attorney Alvin Bragg’s position will be.
But there is no good reason for the Manhattan district attorney to drop the case simply because Trump will be president again. It is one thing to say that nothing further should happen in any of his cases during the presidential transition period and while he is in office. The federal cases have not gone to trial against Trump and never will; it’s just a matter of when and how they’ll be buried — whether it’s federal prosecutors dropping them, Trump’s attorney general firing them, or Trump trying to issue a legally untested self-pardon.
The state case in Georgia has also not yet been heard, and is currently in pre-trial proceedings in the defense’s attempt to disqualify Fulton County District Attorney Fani Willis; There are a number of co-defendants from Georgia who could stand trial while Trump is in power, but he would not face trial until after he leaves office. Presidents cannot grant pardons or have them dismissed in matters of state.
The case in New York State is different. Trump has already been taken to court. A jury found him guilty. Dismissing the case completely would disrespect the jury’s verdict and would generally make no sense. Trump could argue that having a conviction hanging over him would hinder his duties, but that’s his problem. He was convicted as a private citizen. What’s done is done. If he really wants to put the case behind him, he should go the other way and get the case solved as quickly as possible.
But as this latest delay shows, Trump could succeed in making a decision on whether he can overturn the sentences and what his punishment would be if Merchan rejects his attempt to do so. It is worth noting that incarceration is not mandatory in this case and any jail time or other punishment, such as probation, could be deferred until Trump leaves office.
Even if he had lost the election and been sentenced to a relatively minor prison term, Trump would likely have remained free pending his appeal. And if Merchan were to overturn the sentences, as Trump requested, that could give prosecutors a chance to retry him after he leaves office.
We don’t know what the state’s position will be towards Merchan. For the sake of argument, let’s assume the prosecutors will say they agree to stay further proceedings until Trump is out of office. That might be a relatively reasonable position at this point, all things considered. But if they agree to an outright dismissal, that would mean giving the case away for free.
Subscribe to the Deadline: Legal newsletter for expert analysis of the week’s top legal stories, including Supreme Court updates and developments in Donald Trump’s lawsuits.
This article was originally published on MSNBC.com
