The ruling sets the stage for an appeal that, in effect, will suspend the proceedings while Trump is in office.
Judge Juan Merchan has rejected President-elect Trump’s claims that the guilty verdicts against him in the Manhattan criminal trial must be vacated, and the case dismissed, based on the Supreme Court’s July 1 immunity ruling.
Judge Merchan’s 41-page opinion does not address the question of whether the case must be suspended while Trump contests the ruling on appeal. Neither, however, does the judge attempt to schedule sentencing on the 34 counts of business-records falsification.
On next moves, then, it appears the ball is in Trump’s court. Bottom line: While the immunity appeal is pending, Trump has not been sentenced, he is not yet formally a convicted felon, and he should not have to deal with the Manhattan case while he is president.
Down the line, Merchan accepts the arguments posited by prosecutors from the office of Alvin Bragg, Manhattan’s progressive Democratic district attorney. Notwithstanding the defense’s raising of the immunity claim in pretrial motions, and its reassertion of the claim right after the Supreme Court granted review of Trump’s immunity claim in one of the federal prosecutions against him (the election-interference case in Washington, D.C.), Merchan holds that Trump’s objections based on the justices’ subsequent immunity ruling (Trump v. United States) are, in the main, untimely and, in any event, meritless.
To recap briefly, the allegations in the indictment involved the manner in which Trump and his company booked Trump’s 2017 reimbursement of Michael Cohen — then his personal lawyer — for a $130,000 payment in October 2016 to silence a porn star (Stormy Daniels) who claimed to have had a fling with Trump a decade earlier. During the first year of his presidency, Trump made the reimbursement payments in monthly installments.
In the teeth of federal campaign-finance law and a decision not to prosecute Trump by the Justice Department — which has exclusive jurisdiction to criminally enforce federal campaign-finance law — Bragg claimed that the payment to Daniels was a campaign expenditure that Trump illegally failed to disclose to the Federal Election Commission. Bragg alleged, moreover, that Trump’s reimbursement payments to Cohen — couched as legal fees — were falsifications of business records for the fraudulent purpose of concealing the supposed federal crime.
The concealment allegation inflated the business records charges (ordinarily misdemeanors under New York law) to felonies, punishable by four years’ imprisonment per count (maxing out at 20 years’ imprisonment under New York sentencing law). By this sleight of hand, Bragg revived what would have been a time-barred case. (The alleged business-records offenses occurred in 2017; the two-year misdemeanor statute of limitation expired in 2019; yet, by framing the charges as felonies, Bragg was able to charge them in 2023 — the five-year felony statute of limitations having been extended an additional year due to the Covid pandemic.)
In his ruling, Merchan relies heavily on Trump’s concession that the charges against him involve purely private transactions, not official presidential acts.
The Supreme Court’s immunity ruling instructed that presidents, including former presidents, enjoy at least presumptive immunity from criminal prosecution for all acts within the broad ambit of executive authority (and absolute immunity for core constitutional functions of the chief executive). The Court, furthermore, held that even with respect to criminal allegations involving private conduct, prosecutors are barred from introducing proof of official presidential acts as part of the chain of evidence to establish private illegality.
That latter holding gave Trump the opening to claim an immunity violation. At trial, Bragg had offered and Merchan had admitted into evidence testimony relating to Trump’s official acts as president, as well as an official financial disclosure statement in which then-president Trump had admitted that he reimbursed Cohen (a seemingly incontrovertible fact that Trump sought to deny at trial — a strange gambit apparently driven by campaign politics rather than legal strategy).
In essence, Merchan reasons that even if Trump had not waived most of his immunity claim by failing to make pointed objections during trial testimony, such objections would have been unavailing. On that score, the court rationalized that, while White House staffers Hope Hicks and Madeleine Westerhout provided testimony about Trump’s activities while he was president, that did not necessarily mean they were testifying about Trump’s presidential acts. The essence of the testimony was about Trump’s payments to Cohen, which Trump acknowledged were private acts (payments to his private lawyer).
Similarly, Merchan determined that even though Trump filed the disclosure form as president, its detail about the reimbursement of Cohen was less a presidential act than the acknowledgment of a private financial transaction.
Merchan also highlighted that, on cross-examination of Cohen (the prosecution’s star witness), it was Trump’s counsel who raised purported discussions between Trump and Cohen regarding a pardon. By Merchan’s lights, Trump could not have it both ways: Chiding the state for introducing evidence of his actions while president yet, when he perceived it in his own advantage, having his own lawyers introduce discussions about official presidential acts. (Trump did not pardon Cohen.)
Finally, and consistent with my assessment of what he would do (see, e.g., here, here, and here), Merchan agreed with Bragg that even if the disputed evidence should have been excluded on immunity grounds, the error was harmless because the other evidence of guilt on the 34 business-records falsification counts was overwhelming.
It is worth noting that Trump’s immunity argument does not come close to being his strongest argument for why the guilty verdicts against him should be reversed. But as we’ve observed, Trump may only raise those arguments on his full direct appeal, which he can’t get to until he is sentenced and the judgment of conviction is entered. He doesn’t want to enter the presidency next month as a convicted felon under a criminal sentence; ergo, the immunity claim became important for its delay potential, not its substantive merit.
Trump was always behind the eight-ball on immunity. Unlike the federal 2020 election-interference case, which was based entirely on Trump’s actions as president, Bragg’s case focused on private conduct — presidents can and do continue to engage in private acts during their terms in office.
The immunity issue has outsize importance because, unlike the vast majority of issues that arise in criminal litigation, immunity claims are subject to immediate (i.e., “interlocutory”) appeal. This has been vital to Trump’s delay, delay, delay strategy against the Democrats’ lawfare campaign: Immunity appeals divest the trial court of jurisdiction to act on the case until the higher courts have conclusively resolved the immunity question, which takes months — if not more. Even if Trump’s immunity claim is not compelling, he should be able to appeal Merchan’s ruling to the New York Appellate Division; even if he loses there, he will then appeal to the state’s highest tribunal, the Court of Appeals, and then perhaps to the U.S. Supreme Court.
In the meantime, Merchan would be prevented from proceeding with the only remaining aspects of the criminal proceeding — the imposition of sentence and the formal entry of the judgment of conviction.
This is critical because everyone appears to agree that no further proceedings in the case can occur while Trump is president — although there is disagreement about whether this means the proceedings should simply be suspended for four years and then resume when Trump leaves office in 2029 (as Bragg contends) or must be dismissed (as Trump contends). At this point, Trump has not been sentenced on the jury’s guilty verdict and no formal judgment of conviction has been entered; at a minimum, he wants that to remain the case when he takes office on January 20 and for the ensuing four years.
Judge Merchan’s opinion does not address the question of what happens next. He simply denies Trump’s motion to dismiss the indictment and vacate the jury verdict on immunity grounds. That leaves it to Trump to file a notice of appeal.
Prudently in my view, Merchan has not endeavored to set a sentencing date. I presume this means that he will take no action while Trump appeals the immunity issue. That process will still be in its early stages when Trump is inaugurated next month. Therefore, the case will be in limbo. Even if the appellate courts reject Trump’s immunity claim, as I expect they eventually will, Trump will not be sentenced and no criminal conviction against him will be entered on the public record while he is president.
Whether the case will actually be resumed in 2029 is anybody’s guess.