ANDREW McCARTHY: Anti-Trump judge makes the right decision by delaying sentencing

By delaying the sentencing of former President Donald Trump until after the 2024 election, Judge Juan Merchan did the right thing for the wrong reasons. That’s clear from his setting the sentencing date for November 26, even though — according to the four-page letter to attorneys he made public today — Merchan is delaying his decision on Trump’s immunity request until November 12.

In my view, Trump is correct that proceeding with the September 18 sentencing would have been gratuitous interference in the 2024 election. There was no legal reason for Trump, a major-party candidate, to be sentenced in the final stretch of the presidential campaign. And note that, until today’s postponement, Judge Merchan appeared to be insisting on sentencing Trump just as early voting begins (September 16) in Pennsylvania, the most crucial state in the election battle.

JUDGE MERCHAN DELAYS TRUMP SENTENCING UNTIL AFTER ELECTION

Although Trump was convicted of 34 counts, the offense of leaking business records is a nonviolent crime that is normally considered a misdemeanor in New York (and not normally prosecuted at all by Manhattan’s preeminent progressive prosecutor, Alvin Bragg). And while 34 counts sounds impressive, the number is high only because Bragg unethically parsed what should have been a handful of counts by charging each piece of paper as a separate four-year crime—a total of 136 years of potential imprisonment!

Manhattan District Attorney Alvin Bragg speaks to the media after a jury found former President Donald Trump guilty of 34 counts of falsifying business records, Thursday, May 30, 2024, in New York. (AP/Seth Wenig)

This move was taken to make Trump look like a career criminal. But the offense in question is relatively trivial, given that, apart from Trump’s lack of a criminal record, he was clearly going to be released on bail pending appeal, regardless of the sentence he received. That appeal could take years to resolve, and it is likely (in my view) that the guilty verdicts will be overturned on appeal – if not overturned even sooner (more on that later).

So there should have been no rush to sentence before the election. In his letter, Merchan rightly protests that he is “fair, impartial, and apolitical.” On the contrary, he is a partisan Democrat who, as Hugh Hewitt has observed, contributed to Biden’s campaign against Trump in 2020 in violation of judicial ethics laws, and whose daughter is a progressive political activist, working for Kamala Harris, among other staunchly anti-Trump Democrats. For a truly apolitical judge, a September 18 sentence would have been unthinkable. The only rational reason to insist would be to allow Harris to label Trump a “convicted felon facing a prison sentence” as Election Day approaches.

That said, however, the legal The reason for the postponement should not have been the imminence of the election, but rather the incontrovertible fact that, because of Bragg's recklessness and Merchan's complacency towards him, there is now a profound immunity problem in this case.

Over Trump’s objection, and despite the fact that the Supreme Court was simultaneously seriously considering presidential immunity, Merchan allowed Bragg’s prosecutors to present evidence of Trump’s official presidential actions — including testimony from two Trump White House staffers, described as “devastating” by prosecutors in their jury summing-up.

A month after the trial, in his immunity decision (Trump vs. USA), the Supreme Court not only held that presidents enjoy immunity from prosecution for official acts, but it added that such acts cannot be admitted as evidence in a criminal trial. Therefore, the disputed evidence should have been excluded.

The Supreme Court of the United States: (front row, left to right) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito, and Associate Justice Elena Kagan, (back row, left to right) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo by Alex Wong/Getty Images)

Moreover, immunity is one of the few criminal law issues where an accused person has an immediate right to appeal – particularly a former president who is at risk of being criminalized for his official acts. Indeed, unlike other miscarriages of justice, immunity is about whether it is (or was) appropriate to hold a trial in the first place. Immunity issues must therefore be decided before an accused person enjoying immunity is subject to further proceedings.

That That's why the postponement should have been an easy decision for Merchan. But it still doesn't seem to have happened to him.

In his letter, Merchan inconsistently claims that there would have been no need to delay sentencing now if the original July 11 date had been met. But that date could not have been met. The Supreme Court’s immunity ruling was issued on July 1. It was that immunity ruling, not the 2024 election, that necessitated the delay.

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Merchan also notes that even Bragg did not oppose Trump’s motion to postpone (in fact, he considers Bragg to have joined Trump’s motion). But the judge seems unmoved by the fact that the prosecutor took this position because Trump would have the right to appeal if Merchan rules against him on immunity. The delay was inevitable.

Ultimately, Merchan had said he would make his immunity decision on September 16. However, having now postponed the sentence until November 26, Merchan has somehow decided to postpone the immunity decision until November 12. This makes no sense.

If Merchan rules against Trump on November 12 (as I expect, given the one-sided record of this case), Trump will appeal and argue forcefully that he should not be convicted until his appeal is complete—in the New York appeals courts and potentially all the way to the U.S. Supreme Court. Obviously, there is no chance of that happening before November 26.

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If, as he told the parties, Merchan was prepared to rule on Trump’s immunity claim on September 16, he should do so. Even with such a timetable, there’s no way the appeals process his decision will trigger could be resolved in time for a November 26 sentencing — and even Merchan concedes that sentencing might not happen at all if he interprets the Supreme Court’s immunity ruling as requiring the guilty verdicts to be overturned. (Don’t bet your money on that.)

In any case, a postponement of the September 26 sentence should have been a no-brainer. Merchan eventually agreed, albeit awkwardly. I don’t know if Trump will win the election, but I seriously doubt he’ll have to cancel his Thanksgiving plans because of a November 26 sentence.

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