Trump wants delay and the assurance that he won’t be sentenced prior to Inauguration Day. Will he get it? Probably. . . .
As we noted last week when Judge Juan Merchan conceded to reality and indefinitely postponed President-elect Trump’s sentencing, the court also set a schedule for Trump to file a new motion to dismiss the case — a motion based on the ramifications of his election three weeks ago.
Rebuffing Trump’s request to be given until December 20 to file his new motion — which will supplement his pending dismissal motion (filed this past summer, based on the Supreme Court’s July 1 immunity ruling) — Judge Merchan went with the schedule proposed by District Attorney Alvin Bragg: Trump to file by Monday, December 2, the DA’s office to respond by the following Monday, December 9, and the court issuing a decision probably not too long afterwards.
As I’ve also pointed out, Trump’s team has been pushing for a long schedule and for intermittent delays because Trump wants to ensure that he is not sentenced, and the judgment of conviction is not entered, prior to Inauguration Day. At that point, he believes (probably correctly) that the case would be suspended for four years while he is in office. That is, it is more important to Trump not to enter the presidency as a convicted felon than it is to move on to the full appeal of the case — an appeal he might well win, but one that couldn’t happen until after sentencing and entry of the judgment. Short of that, he is hoping Merchan will grant one or both of his post-trial dismissal motions, but I believe that is highly unlikely.
The Trump defense team is now seeking a three-day extension of time — until Thursday, December 5 — to file its submission.
This request seems minor, but it caught my eye because the rationale for it is no longer operative: In a letter to Merchan yesterday (November 25), Trump’s lawyers — Todd Blanche and Emil Bove, both of whom he has nominated for top Justice Department posts — argued that they would need time to assess the impact on the state prosecution of what they anticipated would be Biden-Harris Justice Department special counsel Jack Smith’s December 2 dismissal of the two federal prosecutions against the president-elect. As we now know, Smith moved to dismiss his cases yesterday. Trump’s lawyers apparently did not when they penned their letter to Merchan.
I have no idea whether there is ongoing coordination between the prosecutors, of whether Smith filed his federal dismissal motion earlier than expected so that the state parties would have time to assess its impact, if any. If I had to guess, I’d say it’s a coincidence. I suspect Smith filed early because there was no reason not to and he wanted to wrap up before the Thanksgiving holiday. I expect, moreover, that Bragg will argue that the federal prosecutor’s decision is irrelevant to the state case, which is brought by a different sovereign and is in a different procedural posture (i.e., the federal case was pretrial with no prospect of a trial in the foreseeable future; the state case is post-trial, with 34 guilty verdicts, but pre-sentence).
In any event, the Trump request for a three-day delay is reasonable — there is no reason to rush because the state case is probably headed for either dismissal (unlikely at this point) or long-term delay (appeals that will lead either to a dismissal or, more likely, a freezing of the case in place while Trump is in office). But that said, the rationale for delay in yesterday’s letter from Trump’s lawyers is no longer viable. Their premise was that they’d need three days to assess the impact of Smith’s expected dismissal motion; but Smith has now moved to dismiss a week earlier, giving Trump seven days to weigh the relevance of the federal dismissal and before his submission is due on December 2.
Bragg’s office, which consented to the postponement of sentencing but pushed for earlier briefing of the dismissal motion than Trump wanted, did not consent to Trump’s request for a three-day delay. It is not objecting vigorously, though; in a curt responsive letter, also filed yesterday (apparently before anyone knew Smith’s position), prosecutors suggested sticking to the current schedule but added that they’d be prepared to file their submission in opposition to Trump’s anticipated motion on any schedule the Court prescribed.
The dynamic here is interesting. Knowing that Smith was going to move to dismiss the federal case, Trump’s lawyers have been laying the groundwork to argue that the federal and state cases are joined at the hip — that the federal dismissal must lead to dismissal of the state charges. The DA’s office, to the contrary, says the cases are unrelated, with the state unbound by any Justice Department decisions about federal prosecutions.
A last point: While the state sentencing has been postponed sine die, I think the widespread reporting of an “indefinite postponement” could be misleading.
At this point, “indefinite” does not necessarily mean “until Trump is out of office until 2029.” It could end up meaning that. For now, though, Merchan is not setting a sentencing date until he reviews the parties’ submissions on Trump’s new dismissal motion. The fact that the judge denied Trump’s effort to put his submission off until late December indicates to me that he intends to decide both the new and the pending dismissal motions shortly after Bragg responds to Trump’s new motion — I believe that is why Merchan admonished the parties that he would accept no reply briefs from Trump after Bragg’s response.
I anticipate that sometime before the Christmas holidays (probably before Friday, December 20 — the day Trump initially proposed for submitting his dismissal motion), Merchan will deny both of Trump’s dismissal motions. At that point, the question will become: Does Trump get an immediate appeal or will Merchan be able to impose sentence and file the judgment of conviction on the court’s record prior to Inauguration Day?
As I’ve opined a few times, I think Trump should get an immediate appeal. The matter, however, is not free of doubt.