Trump sentencing: A BS conclusion to a BS case Byron York
This Friday, though, Trump will have to put aside his work to attend, either in person or virtually, his sentencing in the Manhattan criminal prosecution in which he was convicted of falsifying business records. The case, brought by Manhattan District Attorney Alvin Bragg, was widely viewed as the weakest of the four criminal cases brought against Trump by elected Democratic prosecutors and the Biden administration. For one thing, the charges, questionable as they were, were misdemeanors, past the statute of limitations, which Bragg inflated into felonies by alleging that Trump falsified records in a plot to steal the 2016 presidential election, which Bragg did not have the authority to police.
Even anti-Trump commentators were baffled by the case. “When Manhattan District Attorney Alvin Bragg first brought charges against Donald Trump in March 2023, the legal theory behind the indictment remained remarkably unclear,” Quinta Jurecic, an editor of the journal Lawfare, from the liberal Brookings Institution, wrote last April. “Now, a year later, with the trial finally underway … the charges against Trump still have an oddly inchoate quality.” To add to Trump’s problems, the case was presided over by Manhattan Judge Juan Merchan, who, in 2020, violated New York’s rules of judicial conduct to make a small donation to the Biden campaign.
Nevertheless, as the other cases against Trump fell by the wayside — the two federal prosecutions brought by special counsel Jack Smith were bogged down in litigation, and the Georgia case brought by Fulton County District Attorney Fani Willis was sunk by prosecutorial misconduct — the Bragg case stayed on track. Anti-Trumpers came to support the case because they saw it as the only chance to get Trump before the 2024 election.
At the end of May, Bragg, aided by a key veteran of the Biden Justice Department, convinced a jury in deepest-blue Manhattan to convict Trump. There it was — how could voters support a convicted felon? Finally, Democrats got what they wanted. Surely, the conviction — on 34 felony counts, no less — would sink Trump’s chances to be president.
Maybe not. Like everything else in the Democrats’ multifront lawfare campaign against Trump, the Manhattan verdict backfired. Conviction on 34 counts had no effect on Trump’s support because Trump’s voters, Republicans and some independents, too, saw the charges as legally dubious and politically motivated. On Nov. 5, Trump was elected president for a second time.
The other cases went away, but Bragg’s 34-count conviction stood. No, Democrats could not use it to prevent Trump’s election — that was already done. But maybe they could still damage Trump with some sort of attention-getting sentence before he took office.
Bragg suggested that Merchan delay the sentencing during Trump’s presidency and then sentence him afterward. That way, every day for the next four years, the president of the United States would have a pending criminal sentencing hanging over his head, coupled with a desire not to anger the prosecutor and judge who could put him in jail at the end of his term.
Trump, of course, moved that Merchan throw the case out entirely. Trump’s argument was very simple: The defendant has been elected president, and it’s over. Merchan, the Biden donor, refused and instead set a sentencing date of Jan. 10.
So, what happens on Friday? In his decision rejecting Trump’s argument, Merchan laid out some of his thoughts. He said it was not his “inclination” to sentence Trump to jail, even though he has the authority to do so. The problem with prison time, Merchan said, was that prosecutors “no longer view [it] as a practicable recommendation.”
Instead, Merchan said a sentence of “unconditional discharge” seems to be the “most viable solution” to “ensure finality” of the case. That would mean that the case would be over, Trump would be an officially convicted felon — good for those Democratic sound bites — and Trump could also begin appealing the verdict, as he has been itching to do.
The question now is whether Merchan will do what he says. “We only have Merchan’s word for it that he will impose [unconditional discharge] on Friday — he could always change his mind,” University of California, Berkeley, law professor John Yoo told me in an email exchange.
Yoo noted that Merchan could sentence Trump to community service, or jail, or lots of things, but it would all be a political gesture. “The reason this is wholly political in nature is because Merchan knows that he would have no chance of actually having a real sentence executed,” Yoo said. “Once Trump is in office, a state cannot interfere with his ability to execute the duties and responsibilities of the office — this seems guaranteed by the Supremacy Clause of the Constitution. And that would surely include freedom from state criminal punishment, which — in whatever form it took — would have to take Trump physically away from doing the job of president.”
Yoo continued: “I think Trump could order the Secret Service to block any effort by New York authorities — who would they send, the NYPD? Who would have no authority outside the city of New York — to apprehend and force Trump to obey a sentence. Trump could also go to federal court to have Merchan’s decision suppressed. And that is why Merchan’s non-jail sentence is a cynical ploy — he wants to tag Trump as a felon, but not in any way that is other than symbolic. If it were real, Trump would be able to use the powers of the federal government to quash it.”
So, given the circumstances, it appears Merchan has decided to sentence Trump to make a point. But what is the point? Merchan made that clear in his recent decision. “Here, 12 jurors unanimously found defendant guilty of 34 counts of falsifying business records with the intent to defraud,” Merchan wrote, “which included an intent to commit or conceal a conspiracy to promote a presidential election by unlawful means. It was the premediated and continuous deception by the leader of the free world that is the gravamen of this offense.”
That is how Merchan, along with prosecutor Bragg, portrayed a local business records case as a case about the 2016 presidential election, which Merchan, as a county judge in New York state, did not have the authority to rule over. “His comments show that the whole purpose of the case was not to correct bookkeeping fraud, but to punish Trump for his 2016 campaign,” Yoo said, “which is forbidden under federal law. That is the federal government’s job.”
In the end, it is hard to avoid the conclusion that the Manhattan case, from start to finish, from indictment to sentencing, has been BS. Whatever Merchan does on Friday will just be more of the same.
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