New York Judge Juan Merchan faces a choice of freezing President-elect Trump’s hush money case in place until he leaves the White House or tossing it entirely, underscoring how Trump’s election win has changed the dynamic of his legal travails.
Legal experts agree Trump’s election victory changes the trajectory of the prosecution and dooms the possibility he will serve punishment, while Trump’s team is fighting to dismiss the case entirely.
Merchan has indefinitely adjourned what was to be the president-elect’s Tuesday sentencing, after delaying the date multiple times, while the judge stares down the conundrum of the case’s future.
Merchan faces ‘uncharted waters’
Merchan’s decision to punt Trump’s sentencing until after the election now forces the judge to decide how to react to the former president’s White House victory.
“I think we’ve said it about 100 times in the last two years, but we’re in uncharted waters,” trial attorney Chris Timmons said. “Nobody knows exactly what’s going to happen.”
Legal observers said that, at minimum, the case cannot move forward during Trump’s presidency. But it remains to be seen whether Merchan will toss the jury’s 34-count guilty verdict and the entire case.
Merchan gave Trump’s lawyers until Monday to file their motion to dismiss the case in the interests of justice, known in New York as a Clayton motion.
Catherine Christian, a former Manhattan special assistant district attorney, said such motions are “rare and unusual.”
“I’ve only seen it in cases where, in a nonviolent case, someone who is addicted to drugs then gets to go into a drug treatment program for a year, maybe more, and then, in the interests of justice, now the indictment is dismissed,” she said.
Merchan must now decide whether the court can apply to Trump’s extraordinary circumstance and also confront whether he is entitled now to the prosecutorial protections he’ll receive upon his inauguration due to timing factors.
“Donald Trump actually, technically, is not president-elect,” constitutional law expert Robert McWhirter noted. “He’s not going to be president-elect until Dec. 17, when the Electoral College meets.”
Manhattan District Attorney Alvin Bragg (D) is staking out opposition to dismissing the case, instead suggesting freezing the proceedings until Trump leaves office. Bragg is due to file his written arguments by Dec. 9.
Bragg’s approach marks a contrast from special counsel Jack Smith, who on Monday moved to outright dismiss his prosecutions of Trump on accusations of subverting the 2020 election and mishandling classified documents.
“[T]his prosecution must be dismissed before the defendant is inaugurated,” Smith wrote Monday.
In a footnote, Smith noted the Justice Department opinions barring prosecution of sitting presidents do not apply to Trump’s state cases.
Likely appellate battle
If Merchan does not dismiss the charges and moves to sentence Trump, the president-elect’s team is expected to quickly appeal.
Trump’s attorneys are prepared to “fight to the death” to put the case to an end, if needed, a source with knowledge of the president-elect’s legal strategy said.
Legal experts predicted any appeals would fail unless Trump is sentenced, which would trigger the final judgment in his case and open up his options.
Trump could try to appeal in state court before sentencing, but judges rejected Trump’s previous interlocutory appeals aimed at delaying his trial.
“Once he is sentenced, then he can then take all of his appeals,” Christian said. “And then he can appeal in everything he can.”
Trump could also take the battle to federal court, where he for months has mounted an appeal seeking to remove the case from Merchan’s hands. No ruling is expected soon, as the district attorney’s office’s written brief opposing Trump’s effort isn’t due until Jan. 15, but Trump could look to shake up the battle by citing his political victory.
Ultimately, Trump could seek intervention from the conservative-majority Supreme Court, which already handed him a major win by carving out broad criminal immunity for former presidents.
Gregory Germain, a Syracuse University law professor, suggested appellate courts won’t intervene if the judge agrees to delay the sentencing during Trump’s presidency.
“Trump can certainly make the argument that having this sword of Damocles hanging over his head for four years is going to make his life difficult in performing his duties. And maybe some appellate court will agree with that. Maybe it’ll get to the Supreme Court and they’ll agree with that. I kind of doubt it, though,” Germain said.
Landscape will change
Even if Trump’s case is paused with the possibility of a postpresidency resumption, the legal landscape four years from now will look drastically different than today.
“In 2029? I mean, really?” Christian said. “That whole prosecution team will probably be in private practice or someplace else. I mean, to have this just sort of hanging there into 2029 in many ways seems ridiculous, but here we are.”
Between now and then, Bragg must win his reelection next year and, if he wishes, in 2029 again to resume his prosecution of Trump. The president-elect would be 82 years old – a year older than President Biden was when pressure from Democrats over his age resulted in his exit from the presidential race.
The same is true for Fulton County (Ga.) District Attorney Fani Willis (D), who must also win at least one more reelection to pick up her prosecution of Trump in 2029. However, she may have an advantage.
While experts agree Trump’s criminal cases must be paused while he’s in office, the same is not so for Trump’s many co-defendants in Georgia. Willis could take her racketeering case against the former president’s allies to court in preparation for an eventual Trump trial.
“You get a dry run,” Timmons, a former Georgia prosecutor, said. “You get to see what works and what didn’t work. So, it’s a huge advantage.”
In New York, Trump has already been tried. State law requires defendants be sentenced without unreasonable delay, raising the possibility Trump could argue punishing him in 2029 would violate his rights — even though his legal strategy caused the delay.
And putting all that aside, Trump’s case would still eventually have to withstand the Supreme Court’s landmark decision carving out broad criminal immunity for former presidents.
“At the end of the story, this conviction won’t stand, because the Supreme Court will just erase it if Judge Merchan doesn’t. But that’s a while away,” Christian said.
