What could (and what should) happen with Prez-Elect Trump’s upcoming New York state sentencing?
Various media outlets today are reporting, as articulated in the headline of this article in The Hill, that “Trump’s victory likely means curtains for criminal prosecutions.” For three of Prez-Elect Trump’s four on-going criminal prosecutions, that basic analysis seems largely right. But for his New York state case, with jury verdict of multiple convictions and sentencing scheduled for later this month, I think the dynamics are more uncertain and perhaps more interesting.
I am inclined to presume that Trump’s lawyers will now seek an (indefinite?) delay of the sentencing now scheduled for November 26. And yet, I can construct an argument for why Trump and his lawyers might want the sentencing to just go forward now. If NY criminal procedure does not allow Trump to appeal his convictions until a sentence is imposed, perhaps he would want the sentencing to go forward so he can then seeking to have all his convictions overturned on appeal. I assume Trump could get his sentence, whatever its terms, stayed while appealing his conviction.
Speaking of possible sentencing terms, if the sentencing were to go forward in two weeks, it seem extremely unlikely that Justice Merchan would impose imprisonment or any onerous condictions of probation on a President Elect. Having just been elected President of the United States is quite the unique changed personal circumstance to raise at sentencing, and it has to be a mitigating factor. If real life was one big sit-com, perhaps Justice Merchan could come up with some comical and creative “shaming sentence” for Trump (eg, having him post a video on Truth Social about the importance of proper bookkeeping). But I am not sure it would be good at all to risk turning the theater of Trump’s sentencing into theatre of the absurd.
Because the Supreme Court’s ruling in Trump v. United States only formally addressed “conduct alleged to involve official acts during his tenure in office, that ruling still seems not directly applicable. But now that Trump is President-Elect, his lawyers might reasonably seek to draw on that ruling as well as broader constitutional principles to try to derail the case entirely. I doubt any party wants to engaged in robust and novel constitutional litigation at this point, thought it still seems like a possibility. {Update: I just saw an article reminding me that Justice Merchan has stated he would rule on a pending motion to dismiss based in part on the Trump ruling by next week. Specifically, in this order, he indicated that the “motion to set aside the jury verdict and to dismiss the indictment will be handed down off-calendar on November 12, 2024.”]
Finally, I cannot help but wonder if New York Governor Kathy Hochul might consider offering Trump a pardon for his New York convictions. For political reasons, I assume she would not. But it could be quite an interesting gesture from a prominent Deocratic offical and could be pitched as a stateperson’s response to Trump’s call “to help our country heal.” Of course, a pardon does not serve to fully erase a criminal conviction, and so Trump might not even except a pardon even if one was offered.
Interesting times.