Before Inauguration: Sentencing?

Here’s someone who isn’t obeying in advance: Judge Juan Merchan, who oversaw the criminal trial of Donald Trump in Manhattan, which resulted in a guilty verdict against the then-former, now-future president of the United States. We all watched as a jury convicted Trump of business fraud for trying to hide the payments he made to porn star Stormy Daniels to buy her silence about their sexual encounter ahead of the 2016 election. Then we watched as Trump turned the legal system on itself to delay sentencing.

On Friday, Judge Merchan denied Trump’s motion to set aside his guilty verdict and set a time and date for sentencing: 9:30 a.m. on January 10, just over a week before he is inaugurated as the 47th president of the United States.

In the order he issued Friday afternoon, Judge Merchan wrote, “The significance of the fact that the verdict was handed down by a unanimous jury of 12 of Defendant’s peers, after trial, cannot possibly be overstated. Indeed, the sanctity of a jury verdict and the deference that must be accorded to it, is a bedrock principle in our nation’s jurisprudence.”

Those aren’t just empty words. Donald Trump was convicted following a trial where his legal team had the opportunity to cross-examine the prosecution’s witness, put on their own evidence, and argue their case to the jury. And the 12 citizens who made up the jury, including some who had indicated in voir dire that they obtained their news from conservative media sources, found the defendant guilty. That is how we resolve questions of guilt in our criminal justice system—we leave it up to juries to decide disputed facts—and that is as true of a president (assuming his case gets to trial) as it is for anyone else. The jury is the “judge of the facts.” We leave it to them, not to a judge, a king, or even a loudly protesting convicted defendant, to decide what the truth of the matter is. The jury in Trump’s case has spoken.

Trump can and undoubtedly will appeal his conviction. Perhaps he’ll even convince an appellate court that once and future presidents are immune to prosecution for events that occurred before they were elected in the first place—strange things have happened in court for Trump’s benefit. But nothing can change the fact that a jury found Trump guilty based on the evidence, even if the conviction is reversed on some unforeseen technical legal grounds. The Judge was firm about the import of a jury verdict.

It’s likely that Trump will try to get an appellate court to stay the sentencing and prevent Judge Merchan from passing judgment on his case before sentencing on the 10th. He may even try to get the United States Supreme Court to weigh in. For Trump, even a delay here likely would be a win, as delay so often has been for him. It’s likely we’ll see him take one or more stabs at an appeal in the next few days.

The Judge tipped his hand about his intentions, if the case does make it to sentencing, in his Friday order. He wrote that he wasn’t inclined to impose prison time, although a final determination couldn’t be made until he heard from the parties in court. Judge Merchan noted that “the People concede they no longer view [custodial time] as a practicable recommendation.” He wrote that based on that, he had concluded that a sentence of “unconditional discharge” was “the most viable solution to ensure finality and allow Defendant to pursue his appellate options.” He also said he would permit Trump to appear virtually, instead of in person, if he chose to do so.

Unconditional discharge means Trump would be released from the court’s supervision without any additional obligations. No custody, no fine, no post-conviction supervision by the probation office.

While some folks are upset that prosecutors and the Judge aren’t going full steam ahead, I have a different view. Given that they are stuck with a bad situation that is out of their control—a convicted defendant about to become president—they are doing the best they can to preserve the conviction itself. Trump would like to do away with it altogether. They seem intent on preventing that from happening, and it would be a disgrace if Trump is able to get out from under the jury’s verdict.

If Trump isn’t sentenced before he takes office, there would be an absence of finality to the case. Even if there was an order that it would be put off while he was in office with sentencing to follow once he left, there would be the risk that it would never become final hanging in the air. A lot can happen in four years. Trump could find a way to make it go away even though it’s a state case. Presidents have enormous powers, and not everyone is willing to stand up to them.

By announcing his intent to impose the unconditional discharge, Judge Merchan takes the wind out of Trump’s legal arguments for delaying sentencing. He deprives the appellate courts of solid reasons to put off sentencing. Trump will have no further obligations to the court. He won’t be able to argue the proceedings interfere with his transition—the Judge is even letting him appear remotely, and it’s going to be tough for the man who was on the golf course while the vote for speaker was taking place to say he can’t set aside 30 minutes to hop onto a Zoom hearing. With no jail time, no fine, no supervision by probation looming over him, there is nothing to interfere with Trump’s preparation to take office. And it would be difficult to articulate any unique harm from the sentencing. Trump has, after all, already been convicted and reelected despite that fact. Legally, Trump would have to convince an appellate court that he would be irreparably harmed if he is sentenced on the 10th to justify putting it off. Judge Merchan has left him without much to work with. Trump can appeal the jury’s verdict and anything else he objects to after the sentencing, and a court can fix any error it might find.

Judge Merchan’s approach seems carefully crafted to maximize the chances that sentencing will happen. And that matters, because once Trump is sentenced, the clock is ticking on his appeal. He has 30 days to file, and if he doesn’t take the appeal within the time established by law, he waives his right to do so. Once the appellate process is complete, that’s it. Trump can rail all he wants, but it’s over; he will forever be a convicted felon. And there’s one more important detail here. If a defendant dies while a case is on appeal, the conviction is vacated. I learned this as a young prosecutor when, to my utter astonishment, it happened in one of my cases. It is, in fact, the law, and were Trump to pass away before the appeal is complete, he would no longer be a convicted felon. That’s another reason to make sure sentencing takes place, so the appellate process can get underway without delay. That’s not unique to Trump, prosecutors have that same interest in all cases.

The handwriting has been on the wall for some time that Donald Trump isn’t going to prison on these charges. For one thing, substantial jail time would be inconsistent with how other defendants charged with this crime are treated. And as the Judge pointed out, there are considerations for the country. Given the way Trump has successfully played the system, both for time and for favorable treatment, achieving finality on this conviction would be no small feat.

What will sentencing look like if we get there? The Judge shared his view of the seriousness of the process when he discussed the sanctity of jury verdicts in the language at the top of this post. There is also a very interesting footnote that comes during his discussion of the Trump lawyers’ frequent allegations of misconduct, even criminality, by the prosecution team and the Judge himself. In the footnote, Judge Merchan refers to Chief Justice Roberts’ recently issued report on the state of federal courts, in which the Chief Justice chastised people who question the courts. In a twist the Chief Justice may not have anticipated, Judge Merchan wrote, “Dangerous rhetoric is not a welcome form of argument and will have no impact on how the Court renders this or any other Decision.” In other words, don’t expect the Judge to kowtow to the future president. Respect for the importance of the office and the needs of the American people, absolutely. Abject deference, no. This is a Judge who is going to talk to this defendant as he would to any other following a conviction.

Trump seems to be anticipating that he’s in for a rough go of it. Friday night on Truth Social, he posted, “Every Legal Scholar and Pundit, including the highly respected, and sadly recently passed, David Rivkin, as well as Jonathan Turley, Elie Honig, Andy McCarthy, Alan Dershowitz, Gregg Jarrett, Elizabeth Price Foley, Katie and Andy Cherkasky, Paul Ingrassia, and many others, have unequivocally stated that the Manhattan D.A.’s Witch Hunt is a nonexistent case, which is not only barred by the Statute of Limitations but, on the merits, should never have been brought. This illegitimate political attack is nothing but a Rigged Charade. ‘Acting’ Justice Merchan, who is a radical partisan, just issued another order that is knowingly unlawful, goes against our Constitution and, if allowed to stand, would be the end of the Presidency as we know it. Merchan has so little respect for the Constitution that he is keeping in place an illegal gag order on me, your President and President Elect, just so I cannot expose his and his family’s disqualifying and illegal conflicts. I am the only Political Opponent in American History not allowed to defend myself - A despicable First Amendment Violation! …”

The hearing, as the kids say, is going to be lit. The idea that this sentencing would be “the end of the presidency as we know it” is intriguing but likely fanciful. Donald Trump, like every other convicted felon, will face a judge at sentencing, and that judge will do his level best to hold him accountable, even in this highly unusual case. Judge Merchan is doing his best to make sure the scarlet letter stays in place.

We’re in this together,

Joyce