As we anticipated last Friday, President-elect Trump is appealing Judge Juan Merchan's ruling, issued late Friday afternoon, denying Trump's post-trial motions and directing that sentencing take place this coming Friday, January 10, on the 34 counts of business records falsification on which a state jury in Manhattan found him guilty back in May.

Late this afternoon, Judge Merchan rejected Trump's attempt to postpone the sentencing.

As I explained Friday, Merchan has signaled that he will not sentence Trump to a sentence of incarceration or probation — an inclination that would make no sense if Trump's supposed crimes were as serious as Merchan portrays them to be. This is thus about one thing and one thing only: New York progressive Democrats want Trump to be sentenced because that's the condition precedent to formally entering the judgment on the court's record. That is, New York Dems want Trump to enter the presidency two weeks from today as a convicted felon.

In a nutshell, the president-elect contends that Judge Merchan's rejection of his presidential immunity claims transgresses the principles outlined in the Supreme Court's July 1 ruling in Trump v. United States (which arose out of the now-dismissed January 6 case brought by Biden Justice Department special Counsel Jack Smith). Moreover, Trump's legal team argues that filing an appeal to the higher court — here New York's Appellate Division, First Department — deprives Judge Merchan of the authority to proceed with sentencing.

In the alternative, Trump asked Merchan to treat the filing of his appeal as if it were a motion made in Merchan's lower court (Supreme Court, New York County) to postpone the sentencing while the immunity appeal proceeds. Essentially, that is what Merchan did in rebuffing Trump late this afternoon.

There was no doubt that Team Trump would get nowhere with Merchan on these maneuvers. If the sentence is postponed, Trump will have to convince the Appellate Division (or, if he fails there, convince a higher state court or a federal court) to postpone it.

Trump's theory here is straightforward. In its Trump immunity decision, the Supreme Court ruled not only that presidents have presumptive immunity for all acts within the broad ambit of official executive power but also that there is an exclusionary rule regarding evidence of presidential acts — i.e., even if the charges are based on alleged private acts (as were DA Alvin Bragg's business-records falsification charges), prosecutors are forbidden from using proof pertaining to official presidential actsto prove these allegedly private wrongs.

In this instance, Bragg chose to offer, and Merchan admitted into evidence, proof involving Trump's practices in the Oval Office — including testimony from two Trump White House staffers. State prosecutors also elicited from their star witness, Trump's former lawyer Michael Cohen, that Trump had indicated that his attorney general would put the kibosh on a Federal Election Commission investigation of the NDA-related payments. (There was no evidence corroborating Cohen's claim, he is a convicted perjurer, and an AG has no authority to shut down FEC investigations.)

It was reckless of Bragg and Merchan to inject this evidence into the case. As the trial was ongoing, the Supreme Court heard oral argument in the federal Trump immunity case; it was obvious that a number of the justices were inclined to find that presidents had a measure of immunity from prosecutorial use of official acts evidence. While the sweep of the Court's ruling may have been surprising to many, the conclusion that presidents (including former presidents) have immunity was not surprising at all. Yet the New York authorities plowed ahead anyway.

To be sure, Bragg's introduction of official acts evidence did not convert into public acts Trump's undeniably private acts — namely, the booking of reimbursements to Cohen for $130,000 he laid out to secure a non-disclosure agreement (NDA) from Stormy Daniels (a pornographic actress who claims to have had a tryst with Trump a decade before he ran for president). Nevertheless, the introduction of the evidence ran afoul of the exclusionary rule — again, the preclusion of evidence of official presidential acts — that the Supreme Court ultimately decided was an important component of presidential immunity.

Bragg has argued, and Merchan has agreed, that the disputed testimony did not violate the Supreme Court's immunity principles. They claim that the testimony was not focused on official acts, even if most of it was elicited from Trump executive branch staffers. In the alternative, they assert that even if the evidence should have been precluded, its admission was harmless error because, by their lights, the other evidence of Trump's guilt was overwhelming.

Trump points out that in the aforementioned federal January 6 case, the mere filing of an appeal of the trial judge's (Tanya Chutkan's) ruling against Trump on immunity was sufficient to divest that judge of jurisdiction to take further action on the case until the immunity appeal was decided by the superior courts — a process that took seven months.

This is true, but there are salient differences between the federal and state cases.

The federal case was based almost entirely on Trump's official acts as president. It was only at the indictment stage when Trump filed a motion to dismiss the case based on immunity principles.

In the state case, to the contrary, the charges were based on private acts. Trump was not only indicted, but he raised immunity in federal court in trying to get the case transferred there, but chose not to appeal when the federal judge (Alvin Hellerstein) ruled against him. He then raised immunity before Judge Merchan but, again, did not appeal when he was rebuffed. The case was then fully tried for weeks in the spring of 2024, with a jury reaching verdicts of guilty. It was not until after the Supreme Court's Trump decision was issued that Trump sought to raise immunity as a basis to vacate the guilty verdicts and dismiss the case. By then, there was nothing left to do in the case but for Merchan to rule on Trump's post-trial motions and — assuming he would deny them, as he has — impose sentence and formally enter the judgment of conviction.

The state case is thus at a far more mature stage than was the federal case when proceedings in the trial court were suspended. Ordinarily, defendants who claim to have an immunity defense raise it at the start of proceedings, and the suspension of trial court proceedings does not waste public resources because there is no trial in the interim. Hence, Bragg argues that Trump is not entitled to an automatic stay just by virtue of filing an appeal of Merchan's denial of the immunity claims. Instead, prosecutors maintain that, if Merchan has decided to proceed with the sentencing, that is a sensible allocation of resources — i.e., the trial has already happened, and post-trial motions have already been denied, so it's best to get on with sentencing, and the entry of judgment, which would allow Trump to proceed with his full appeal of all claims of error, including any immunity claims.

Bragg's position would be compelling if efficiency were the dispositive issue. But it's not.

Immunity is one of the few issues in criminal law that a defendant can take an immediate (or "interlocutory") appeal of a negative ruling. That is because the offense is not merely wrongfully convicting and sentencing the defendant (which can be dealt with by a full appeal at the conclusion of all trial court proceedings); rather, the offense is subjecting an arguably immune person to criminal proceedings in the first place. Where immunity exists, it is supposed to shield a person from being tried or sentenced at all. The law violation is not just the sentence imposed on the immunized person, it is making him face sentencing when immunity is supposed to insulate him from the criminal process.

To this legal consideration, two other circumstances must be added.

First, the immunity issue is a problem entirely of Bragg’s and Merchan's making. The case could have been tried without the injection of official-acts evidence; they decided to inject it, and therefore, Trump should be entitled to an appellate ruling on the effects of that decision before anything else happens in the case. The fact that the trial has already occurred does not diminish the importance of what is still to be done — sentencing and the entry of the judgment of conviction. That is not only true in the abstract; it is obvious from the zeal with which Merchan is pushing to sentence Trump despite the lack of any compelling law enforcement or judicial reason to do so prior to the appeal — and, of course, prior to Trump's imminent inauguration as president.

Second, and relatedly, Merchan's objective here is patently political. He is annoyed that Trump has not already been sentenced — i.e., annoyed that Trump's stress on immunity and consequent strategy of delay has been successful — and he wants Trump to be formally branded a convicted felon. Merchan knows that once Trump takes office on January 20, the Constitution's supremacy clause will bar state action — including proceedings in a criminal prosecution — that would interfere with Trump's duties as president. The constitutional significance of the president's duties was the driving consideration behind the Supreme Court's immunity ruling; it was also the stated rationale of the Biden Justice Department's dismissal of the federal criminal cases against Trump. If Merchan doesn't sentence Trump before January 20, he will not be able to do it until 2029, if ever. That is intolerable to Manhattan Democrats — and it is worth remembering that Merchan violated state judicial ethics rules by contributing to Joe Biden's 2020 campaign against Trump and that Merchan's daughter is a well-paid progressive Democratic operative who worked for prominent anti-Trump Democrats, including Vice President Kamala Harris.

I would also note that Merchan has long known he would rule against Trump on immunity. He could have issued his ruling weeks ago. But that would have given Team Trump lots of time to seek a stay of sentencing from a higher court. Instead, Merchan strategically waited until late last Friday and announced his intention to sentence Trump the following Friday morning — knowing this tight time window would make it practically difficult for Trump to persuade a higher court to intervene, with the presidential inauguration imminent.

In any event, Trump has filed his inevitable appeal and Merchan has issued his utterly predictable rebuff of Trump's attempt to postpone the sentence. The only question now is whether a higher state court or a federal court will intervene in the next 72 hours.

THIS NEWS ITEM IS PRESENTED BY
PUTNAM BOOKS

Merchan Denies Trump's Attempt to Delay Friday Sentencing

President-elect Trump is appealing Judge Juan Merchan's ruling, issued late Friday afternoon, denying Trump's ... READ MORE

A message from Putnam Books

The newest NUMA Files® novel

A new, terrifying world order is being plotted…Unless the NUMA crew can stop this code of desolation in the latest in Clive Cussler's #1 New York Times bestselling series.

Shop Now