President-elect Donald Trump’s multi-pronged legal efforts to avoid a sentence for his New York crimes ended quietly in defeat Thursday evening in a short 5-to-4 order by the Supreme Court in Washington.
The majority did not decide any of Trump’s legal arguments, saying that all of those could be considered during appeals that he is expected to pursue, perhaps going on into his Presidency.
As a result of the order, Trump had run out of legal options, and thus will be sentenced at mid-morning on Friday in the same Manhattan courtroom where a jury convicted him last May 30 of 24 serious crimes under state and federal law. The trial judge, Juan M. Merchan, has already said that he is inclined not to sentence Trump to any jail or prison time, or to put him on probation, or to impose any limitations or obligations on his freedom.
However, the sentence would still solidify, legally, Trump’s convictions, keeping them on the public record permanently – if they survive appeal to higher courts. Trump thus is expected to enter the Presidency on January 20 as the only person ever to assume that office as a convicted felon.
Interviewed later on television, Trump said: “This is far from finished.”
The Supreme Court’s order will be contrasted by historians and legal observers with a 6-to-3 decision by the Court last July 1, creating for Trump and for all Presidents, past and future, a broad constitutional immunity to criminal prosecution. Trump already has been the first to benefit from it, after his second election in November resulting in the dismissal of the two federal cases in which he faced criminal charges.
He might yet benefit further, if his New York convictions – the only guilty verdicts against him – were to be overturned, either by lower courts or by the Supreme Court in the future. Those are the convictions for which a sentence will be imposed, at a hearing at which Trump and his lawyers will be free to make statements that may well continue their harsh criticism of Judge Merchan and the courts in general.
The only issue before the Justices Thursday was whether to order a postponement of sentencing.
The new order picked up the votes of two of the members of the majority that produced the July 1 ruling:: Chief Justice John G. Roberts, Jr., and Justice Amy Coney Barrett. That, of course, did not mean that they would necessarily vote against Trump in any future appeal he pursues. It is almost a certainty that any appeal will be occurring after he is in the Presidency, which begins in 11 days when he takes the presidential oath at his inauguration.
Dissenting from the new order were Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. The dissenters said only that they would have granted Trump’s request to temporarily block the sentencing set for tomorrow. (It should be noted, though, that those four Justices would be able to grant review of any future appeal by Trump; it takes only four votes to do that; it took five votes to deny the postponement request.)
The majority said in its order that it had several reasons for refusing to block sentencing; it said that among its reasons were these:
First, that Trump’s plea, that evidence to which he claims immunity under the July decision was used against him, can be assessed in appeals that run their normal course.
Second, that the limited nature of the sentence Judge Merchan is contemplating would mean that there would be a “relatively insubstantial” burden on Trump’s performance of his duties in the coming Presidency. Although the Court did not elaborate on that point, Trump’s claims of an immunity violation were, in part, that the July decision gave him immunity during the time he is President-elect: that is, between election in November and Inauguration Day this month. Once he becomes President, the issue of his legal rights as President-elect will vanish, but he will have full immunity then as the sitting President.
The order also noted that Friday’s hearing is to be brief, and that Trump is being allowed to appear by a remote hookup. Although the order did not say so, a convicted person normally is required to appear to be sentenced. Judge Merchan gave Trump the option not to appear, and his lawyers said earlier this week that he had chosen to do so virtually.
Trump’s main legal complaint, one that he has pursued in the New York case for months, even before the Court created presidential immunity in July, is that evidence that he claims is barred by that cloak of immunity was used before the grand jury that charged him, and during his trial. That argument so far has now failed only in rulings by Judge Merchan, during and after the trial.
Judge Merchan and three other courts refused this week to postpone the sentencing. The others were a mid-level appeals court in New York State, the highest court in New York State, and the Supreme Court in Washington. None of those three other tribunals has passed upon any of Trump’s legal grievances, other than the challenge to the timing of the sentencing.
His convictions in Manhattan were based upon charges that he filed illegal financial reports to cover up a payment he made to an adult-film actress involved with him in a sex scandal. The so-called “hush money” payment, the jury found, was made during the closing weeks of Trump’s 2016 campaign for the Presidency, which he won.
Trump is no longer at risk of even going to trial in the two federal cases he faced: the one in Washington, D.C., involving charges of crime during efforts by him and his allies in early 2021 to overturn his defeat in the 2020 election, and the one in West Palm Beach, Fla., accusing him of mishandling highly secret government documents at his Mar-a-Lago home and beach club, after he left the Presidency in January 2021.
Although Trump is unlikely ever to be tried in those two cases (both were dismissed after his election, because of his imminent immunity), he might well be embarrassed seriously in the future when the federal prosecutor in both cases, Jack Smith, and his Justice Department superiors make public a two-volume final report on the investigation of both of those cases.
The release of one of those volumes, dealing with the Washington charges, has been expected soon, and those monitoring that investigation have speculated that it will include significant new damaging information about Trump and his associates. The Department is not yet ready to release the second volume, dealing with the Mar-a-Lago secret documents case, because federal prosecutors are continuing to press criminal charges against two of Trump’s Mar-a-Lago employees, after dropping the charges against Trump in that case.
Those two workers this week asked the Florida trial judge, District Judge Aileen M. Cannon, to order a delay of the release of both reports; they argued that release would impair their right to a fair trial. Before the judge acted, the workers’ lawyers, supported by Trump, asked a higher court, the Court of Appeals for the Eleventh Circuit (which handles appeals in Florida federal cases) to block release of both reports. Judge Cannon then issued her own order to block both reports’ disclosure, with that to remain in effect until three days after the Circuit Court acted.
In a two-sentence order issued Thursday night, the Circuit Court turned down the two workers’ request from that court against release. But the Circuit Court also told federal prosecutors that, if they wanted to challenge Judge Cannon’s ban, they should file their own appeal.
Among other practical effects of that Circuit Court order, the Mar-a-Lago workers have three days to ask the Supreme Court to step in and prevent release of both reports.
Trump’s legal saga goes on in the fourth case in which he has faced criminal charges, a state prosecution in Georgia growing out of actions by Trump and his associates in attempting to overturn his defeat in 2020. That case has been stalled by a dispute over claims of conflict of interest among the prosecution team, involving romantic relationships. It is far from clear that this case will ever be tried.
