Donald Trump will be sworn into office as President this month with 34 guilty verdicts still intact, unless he can persuade higher courts to erase those convictions swiftly. That is the result that could follow a scathing new ruling Friday by a New York state trial judge.
In addition, Trump may be inaugurated after being given a sentence for those crimes – but not jail time or other restrictions on his freedom, according to the new ruling by Judge Juan M. Merchan. Although Trump would go free, the convictions would stand permanently.
Judge Merchan, who conducted the criminal trial in Manhattan this year that produced Trump’s only criminal convictions among four criminal cases, issued an 18-page decision rejecting the remaining legal maneuvers by the President-elect to erase the charges and the verdicts.
This new decision was even more sweeping than the judge had issued last month in turning aside an earlier claim by Trump, that he had a constitutional immunity to criminal prosecution as a former President. The December ruling was the first by any court to react to the Supreme Court’s historic ruling last July creating an entirely new form of criminal-law immunity to Presidents, past and future. Merchan ruled then that Trump’s New York trial did not infringe on that immunity.
This time, the judge rejected the argument that Trump had immunity because, as President-elect, he needed immunity in order to allow him to go forward with preparations to become President again. But in reaching that result, the judge used page after page of his opinion to denounce the way Trump had repeatedly criticized the courts and had engaged in “unlawful means” — criminal fraud — to try to influence the election that he won in 2016, his first victory. (The New York verdicts were based on Trump’s use of illegal documents to cover up a sex scandal with an adult film star in order to avoid publicity over that during his 2016 campaign.)
The judge, taking note of the fact that Trump was serving in office when some of the New York crimes were committed, wrote: “It was the premeditated and continuing deception by the leader of the free world that is the gravamen of this offense. To vacate this verdict on the grounds that the charges are insufficiently serious given the position [Trump] once held, and is about to assume again, would constitute a disproportionate result and cause immeasurable damage to the citizenry’s confidence in the Rule of Law.”
Merchan said that, after Friday’s ruling, the only thing that remained to be done in the case was to impose a sentence for the convictions. He rejected, at least for now, a suggestion by state prosecutors that he might consider putting off sentencing until Trump would finish his term and be out of office.
While Merchan said he would not take a position on sentencing yet, until a hearing on January 10, he said that Trump may gain legal immunity once he is inaugurated, so it was important to indicate now what the judge called his “inclination.” That, he said, would be to impose “a sentence of unconditional discharge.”
That apparently means that Trump would face no personal punishment for his convictions, such as jail time or even probation, but the guilty verdicts would remain on the books. There would be no conditions imposed on him to apply after he is “discharged” from any obligation for his crimes.
The judge acknowledged that Trump could appeal the new ruling and could appeal even that kind of a sentence, but noted that under New York law a sentence would have to be imposed before an appeal could be pursued. A sentence of the kind he is pondering, the judge said, would bring “finality” to the case.
A Trump spokesman promptly issued a statement saying there would be an appeal. However, the judge also indicated that, if Trump were to get a higher court to block the sentencing hearing before inauguration day, there might be no other option than to order sentencing to occur after Trump has left office.
Merchan stressed the importance of respecting the jury’s verdict, but he also acknowledged that the doctrine of presidential immunity, as newly created by the Supreme Court, would be a factor against a more severe sentence.
Out of respect for Trump’s need to prepare for inauguration in 17 days, Judge Merchan said that Trump would not have to appear in court for the sentencing on January 10, but instead could appear via a video hookup. Trump’s team must make a choice within two days.
Judge Merchan made several precedent-setting rulings as part of Friday’s action, including these:
• The concept of presidential immunity to criminal prosecution does not apply to a President-elect. Trump does not need it because he is not yet President and thus does not need immunity to enable him to perform the duties of that office.
• Although the doctrine of Presidential immunity given by the Supreme Court is part of national law and thus prevails over state law, it does not apply to sentencing for state crimes.
• Trump is entitled to no immunity under a federal law that makes arrangements for a new President to be sworn into office (the Presidential Transition Act).
• By persuading the judge to put off his sentencing until after the election, Trump gave his “implied consent” to being sentenced for his crimes.
• Although New York state law confers a broad form of nullification of a guilty verdict if that is necessary to serve a basic concept of “justice,” Trump’s convictions do not meet any of the ten factors necessary for that to apply.
The judge acknowledged the unprecedented nature, in U.S. history, of a President being convicted of crime, saying that the Trump case was a “legal scenario likely never to be repeated.”
Among the judge’s other severe condemnations of Trump’s criticism of courts in general and Merchan’s court in particular was a lengthy chronicle of statements that had led the judge to impose a “gag order” during the trial and after the verdict. Merchan was also strongly critical of many statements critical of the court and of the judge by Trump’s legal team in their court filings.
