With time running out, Trump cuts to the High Court, arguing that its recent immunity decision requires postponing the scheduled Friday sentencing.
President-elect Trump’s legal team is a step ahead of me . . . procedurally, anyway.
As Fox New’s Brooke Singman reported earlier (with the brief embedded), Team Trump filed an emergency petition in the United States Supreme Court on Wednesday morning, seeking to block his sentencing in New York State criminal court, which is scheduled for Friday morning. (For present purposes, New York nomenclature is confusing: Merchan’s tribunal is also called the Supreme Court even though it is actually a lower, trial court. I am thus referring to it as criminal court.)
I say the Trump lawyers are a step ahead because I thought their next stop would be the Second Circuit federal appeals court in Manhattan.
Recall that yesterday (as we detailed here and here), Trump sought to get the sentence stayed in an emergency proceeding before the state’s intermediate appeals court — the Appellate Division. There, Judge Ellen Gesmer declined to postpone the sentence (though she said Trump’s merits claims, mainly lodged against Judge Merchan in what’s known as an Article 78 proceeding, could proceed — cold comfort to the president-elect, who for now is more interested in what will happen in the next twelve days before he takes office than in what happens down the road). That did not leave Team Trump many state-level options — at least practical options that might entertain the matter prior to Friday.
That’s why I’m not surprised they turned to federal court; I thought, however, that they’d first go to the Second Circuit. That’s because Trump already has an appeal pending there.
There’s a tangled history on that — like everything else in this saga of Manhattan DA Alvin Bragg’s pursuit of the Democrats’ political nemesis. After Bragg indicted Trump in April 2023, Trump tried to get the case removed to federal court, arguing — among other things — that Bragg’s charges implicated official presidential acts. It was not a very compelling argument (the charges are based on private acts — reimbursement of Trump’s then private lawyer, Michael Cohen, for the $130,000 he laid out for a non-disclosure agreement to silence Stormy Daniels, who would otherwise have gone public about a 2006 tryst with Trump). But Bragg did make a number of representations, assuring the federal court that the case would not involve evidence of official presidential actions.
In Manhattan federal court (the Southern District of New York) Trump had the misfortune to draw Judge Alvin Hellerstein, a (now) 90-year-old Clinton appointee. In July 2023, Hellerstein rejected Trump’s removal action and remanded the case back to the state court.
Trump could have appealed but did not. I believe that was, in the overall scheme of things, a smart strategic call. By that point, Trump had been indicted by Biden-Harris DOJ special counsel Jack Smith in Florida (on the Mar-a-Lago documents case), and his indictment by Smith in Washington, D.C., (on the January 5 case) was imminent. Trump’s lawyers thus knew there was a good chance they’d be arguing immunity, perhaps ultimately before the Supreme Court, and that they’d be on much stronger ground if they were basing that contention on what undeniably were official presidential acts — the J6 case, in particular. If they’d appealed on immunity grounds in Bragg’s case, it would look like they were basically saying Trump was personally immune for all acts just because he had once been president — which may be how Trump sees it, but his lawyers knew the courts would be offended by such a posture.
Trump was found guilty in Bragg’s case in late May 2024. After the Supreme Court made its sweeping immunity ruling in Trump’s favor on July 1, 2024, but Judge Merchan nonetheless wanted to sentence him in September, Trump tried to go back to the federal court again to get the case removed. In the SDNY, he contended not only that the Supreme Court’s ruling shifted the ground on immunity but that Bragg had misrepresented his intentions in the prior year’s removal litigation — i.e., the state had used official presidential acts as evidence. Nevertheless, Hellerstein gave Trump’s submission the back of the hand. Because Hellerstein barely grappled with the points Trump raised, Trump appealed to the Second Circuit.
That is the pending appeal. (There are a few other quirks, but they’re not germane for now.) I figured that, having struck out in the state courts Tuesday, Trump would go to the Second Circuit and contend that if the Friday sentencing were not postponed, his pending removal appeal would be rendered moot and he’d be irreparably harmed.
Instead, the president-elect has decided to cut straight to the Supreme Court. He is arguing that (a) he is entitled to an automatic stay of the sentencing so that he can fully litigate his immunity claims on appeal (the claims Merchan has rejected); (b) that Merchan’s admission at trial of official-act evidence violated the exclusionary rule against admitting such evidence that the Supreme Court spelled out in its immunity ruling; and (c) that presidential immunity should be extended to presidents-elect because the transition activities are integral to the performance of the crucial executive duties that were the Court’s rationale for recognizing that presidents have immunity from criminal prosecution.
These are colorable arguments, in line with the Court’s reasoning in July, when its overarching point was to presume that criminal prosecution was not an appropriate check on presidential misconduct — the Constitution gives that check, in the main, to Congress. Nevertheless, the Court will surely be reluctant to intervene in a state criminal prosecution under circumstances in which Trump has not gone up the chain through the state and federal appellate processes.
Of course, there has never been a case in which a state court proposes to sentence a president-elect ten days before he takes office, under circumstances where he has a colorable argument that presidential immunity has been violated. We’ll see what happens.