Prosecutors in New York told a state judge on Tuesday that they will try to prevent Donald Trump’s move to overturn his one criminal conviction, in a case growing out of his 2016 election to the Presidency, the first time he won.
At the same time, however, prosecutors said they will not oppose a delay in Trump’s sentencing while the judge considers a new plea by the President-elect’s legal team to overturn the 34 guilty verdicts by a Manhattan jury and to prevent any new trial on the state charges at issue.
The jurist handling the case, Judge Juan M. Merchan, will now be faced with balancing – on one side –the needs of the newly elected President to prepare to take office, and – on the other side – the importance of preserving the jury’s guilty verdicts.
Tuesday’s developments suggested that, at least for the time being, Trump may be freed from any further prosecution in two federal cases (federal prosecutors are now weighing how to shut down those cases) while remaining under a legal cloud in the New York state case.
That legal could could linger for now and until Trump’s inauguration in January and, maybe, also during Trump’s new term in the White House. One possibility the state prosecutors said remains in play is that Trump might be sentenced for the New York crimes after he leaves office. The Constitution’s 22d Amendment (the two-term limit), if enforced, would require Trump to leave the Presidency in January 2029.
Trump’s lawyers plan to ask Judge Merchan to clear away any remaining cloud, permanently, because they argue that Trump has legal immunity that should end the New York case altogether. (The federal cases are being scuttled by U.S. prosecutors because of a federal policy that Presidents cannot be prosecuted while in office.)
The Supreme Court last July 1 created a broad new form of legal immunity for the past President (and for future Presidents) to any criminal prosecution in federal court based on official actions taken while in office. But the Court did not decide, and had no reason in that ruling to decide, that the immunity would extend to cases in state court under state laws.
Trump’s planned legal strategy, outlined in a four-page letter that was made public Tuesday, is that the constitutional doctrine of “federal supremacy” means that the new form of legal immunity would extend fully to stop state criminal prosecutions of Presidents, past and future. That is one facet of the decision that Judge Merchan will have to confront when he takes his next action in the New York proceeding.
The prosecutors in that case argued on Tuesday that Trump should have no immunity to the guilty verdicts in New York because those charges arose before presidential immunity was established and because, in any event, the evidence against him in the case did not involve any official acts while he was in office previously but rather involved his actions as a campaigner for office in 2016.
The jury convicted Trump of all 34 charges that he had illegally tried to cover up a sex scandal so that it did not come out while he was campaigning eight years ago. He was found guilty of paying off the adult firm star involved in the scandal, to keep the story from becoming public during the campaign. If Trump were ultimately to be sentenced for those verdicts, he could face up to four years in prison.
It is not clear at this point when Trump’s legal team will actually file their new motion to dismiss the New York case. In their newly released letter on strategy, they focused most of their attention on the plan to seek outright dismissal of the case. They asked the state prosecutors to move promptly to take the initiative to end the case.
But the letter went on to suggest that, if the prosecutors did not do that, the Trump team would seek to delay any sentencing of Trump while Judge Merchan decides on next steps. The letter, though, did not say when the Trump team would take new action.
Aside from the ongoing legal saga before Judge Merchan, Trump’s lawyers are currently asking a federal appeals court to order the entire New York state case to be transferred to federal court, where Trump would be able to mount new challenges to the state verdicts. The lawyers’ letter said they also want delay while that separate maneuver unfolds.
In the two federal criminal cases against Trump, the special prosecutors’ team has until December 2 to advise a federal judge in the Washington, D.C., case and a federal appeals court in the Florida case on how to proceed in view of Trump’s new election.
The Washington case arose out of the violent attack on the U.S. Capitol in January 2021 when Trump sought to contest his defeat in the 2020 election. The Florida case accused Trump of multiple crimes of mishandling highly sensitive national security documents after he left office in January 2021.
Although it is unknown at this point what specifically will be the prosecutors’ tactic in either federal case, there have been strong indications that they will wind down the cases because of the Justice Department policy, first established in 1973, that a President may not be prosecuted for federal crimes while in office.
One deep uncertainty that will remain, creating doubts about all four of the cases accusing Trump of crimes, is how the Supreme Court might rule if any of these cases were to be taken to the Justices for resolution.
If prosecutors do seek to dismiss their two cases, it is doubtful that anyone else would have a legal right to contest that in the Supreme Court. But anything short of an outright dismissal in the New York state case, and in the state case now pending in Georgia, would likely be challenged by Trump’s team in the Supreme Court.
In short, the new Trump Presidency may well start in January and continue, at least for some months, while legal contests unfold further.