The president-elect’s last remaining avenue to having tomorrow’s sentencing blocked is the U.S. Supreme Court.
And then there was one.
One of the two paths President-elect Trump pursued in the effort to halt his sentencing, scheduled for 9:30 a.m. tomorrow, was foreclosed this morning when the New York State Court of Appeals (the state’s highest court) declined to intervene. All that remains now is his emergency petition to the U.S. Supreme Court (which I discussed yesterday).
Procedurally, it was more straightforward for Trump to seek relief from the Court of Appeals — the natural next step after his arguments were rejected by Judge Juan Merchan in the trial court and then Associate Justice Ellen Gesmer in the Appellate Division (New York’s intermediate-level appeals court). But a straight path did not make for an easy ride. As District Attorney Alvin Bragg’s office pointed out in opposition, New York does not adhere to the federal practice in which an appeal to higher courts automatically divests the trial court from taking action; hence Trump’s claim that his mere filing of challenges to the sentencing, based on Merchan’s rejection of his immunity claims, fell on deaf ears.
Furthermore, as noted yesterday, Trump is asking the Supreme Court to extend presidential immunity from criminal proceedings to presidents-elect. While there is a colorable argument for it, it is really up to the Supreme Court to decide whether the reasoning in its recent immunity decision (Trump v. United States) calls for it. The New York courts were always likely to deal with federal constraints as they exist today; and throughout these post-trial proceedings, the DA’s office has vigorously contended that, at present, immunity from criminal proceedings has been granted to sitting presidents but not to presidents-elect.
Importantly, the issue here is not the merits of Trump’s immunity claims, although there has been plenty of argument about that; the issue is whether the sentencing ought to be delayed so Trump can litigate immunity on appeal. The New York courts have not been sympathetic. The contentions rejected today were raised in the form of a proposed order to show cause that would block the sentencing, at least temporarily. It was presented to Judge Jenny Rivera of the Court of Appeals, an appointee of former Governor Andrew Cuomo who clerked for (now) U.S. Supreme Court Justice Sonia Sotomayor when the latter was a federal appeals court judge. Judge Rivera declined to sign the order.
Speaking of Sotomayor, she is the justice to whom is directed emergency applications from the Second Circuit, which has federal jurisdiction over actions arising in New York. When an emergency application is of particular significance and/or raises difficult questions, it is customary for the circuit justice to refer the matter to the full Court. I assume Justice Sotomayor has or will do that with respect to Trump’s petition, but I don’t know. All we know for sure is that, after receiving Trump’s petition on Wednesday, she directed Bragg’s office to respond by 10 a.m. this morning.
That indicates that the Court is quite cognizant of the time pressure involved, so I have to assume we will hear something from Justice Sotomayor or, more likely, the full Court this afternoon.
It’s impossible (at least for me) to say how practical externalities affect the justices in a matter such as this. On the one hand, the Court is officially closed today — at least to regular business — because of the state funeral for former President Jimmy Carter in Washington. On the other hand, while Judge Merchan has ruled that President-elect Trump need not attend tomorrow morning’s sentencing in person, Trump has a right to be present, and if he chooses to exercise that right there are arduous security measures that must be taken by the NYPD, the Secret Service, and New York court personnel; that takes time and consumes significant resources, so the sooner there is a decision, the better.
We’ll keep watching it.