RUTHFULLY YOURS

It is rare to witness such a disconnect between pro-Trump media commentators and the Trump defense team as we’re seeing in today’s news: Manhattan district attorney Alvin Bragg agrees that Trump’s sentencing must be postponed while other proceedings — in particular, Trump’s posttrial motion to vacate the jury’s guilty verdicts — continue. There is outrage in the commentariat, yet Trump and his lawyers are spinning this development as a great victory.

There is a chess game going on here. Bottom line: I believe Bragg is trying to manipulate Trump into asking that the prosecution be suspended for four years.

Despite the Democrats’ campaign rhetoric, Trump is not a convicted felon now, a jury’s guilty verdict notwithstanding. Only the court’s formal entry of a judgment of conviction after sentencing makes a defendant a convicted felon. Bragg knows Trump does not want to be sentenced and have the judgment of conviction entered on the court’s record (and thus on Trump’s personal record). I wager that the DA is calculating that if the president-elect is given the choice of either a four-year suspension of the case or a sentencing so that Trump can eventually appeal the conviction, Trump will choose the former.

If it is Trump himself who asks for that outcome, all the people complaining about the unfairness and harm to the public interest of having a criminal case hanging over a sitting president’s head for four years will have to mute their outrage. And I think Trump is going to ask for that outcome — which is why his lawyers are already equating postponement with victory.

Let’s try to break it into the three relevant stages: (1) Trump’s posttrial motion to dismiss the guilty verdicts based on the Supreme Court’s immunity ruling (which is now on the table); (2) sentencing and entry of the judgment of conviction (which would happen if Judge Juan Merchan denies the posttrial motion); and (3) appeal, which most close observers experienced in criminal law issues believe Trump has a good chance of winning.

Here’s the president-elect’s dilemma (what I’ve previously described as Trump’s catch-22): He wants complete vindication, but that can happen almost certainly only on appeal. Yet, Trump can’t get to appeal unless and until Judge Juan Merchan first (a) imposes a sentence (which could include a jail term, though Trump would be at liberty pending appeal) and, significantly, (b) formally enters the judgment of conviction on the court record, branding Trump a convicted felon.

Now, there are many expert commentators (myself among them) who are anxious to get on with the appeal because they want to see the case reversed. They want that because it was a bogus case, and they want it because it is bad for the country for an American president to be under this kind of cloud. But, of course, none of these commentators is going to get sentenced or get a criminal conviction on their record. Only Donald Trump faces that.

It is likely — to my observation, it is obvious — that Trump wants to avoid sentencing and conviction at all costs. Moreover, while we analysts are, well, analytical, Trump is a fatalist who has confidence that, somehow and someway, he will always land on his feet. Trump thinks, I believe, that if he can avoid being sentenced and formally convicted, some event will make the case go away. No analyst thinks that way, but, then again, a year ago, no analyst would have thought that the other three criminal cases against Trump would just collapse by the deus ex machina of the Supreme Court’s immunity ruling. Trump may not be a very religious guy, but he’s a deus ex machina believer. If you’d lived his life, you’d be one, too.

I also believe that Bragg and his prosecutors, after a few years of close observation, know this about Trump (remember, Bragg has had other prosecutions of the Trump organization and Trump’s chief financial officer). They grasp that Trump’s approach is not to weigh alternatives and pick the best one (or the least bad one). Trump’s approach is to avoid the terrible thing that could happen to him today and then worry about tomorrow when it gets here.

Realizing this, Bragg likely calculates that if he tunes out the calls for him to drop the case — which Bragg does not want to do, especially after he won the trial — Trump will prefer (a) a four-year suspension of the case that will postpone the sentencing and conviction over (b) a rejection of his posttrial motion to vacate the jury verdicts, with the case proceeding to appeal after Judge Merchan imposes a sentence and enters the judgment of conviction — prior to Trump’s inauguration as president.

Bragg is betting that, if that is the choice, Trump will ask for the four-year suspension.

There is an off-ramp here, but it’s not a realistic one under the legal and political circumstances. Trump’s posttrial motion to vacate the guilty verdicts is heavily reliant on the Supreme Court’s immunity ruling, issued a month after the jury found Trump guilty. If Merchan were to grant Trump’s motion, then at the very least, the guilty verdicts would be thrown out. (Trump is also asking for the indictment to be dismissed, but that’s unrealistic. The proper legal remedy would be to throw out the verdicts and leave it up to Bragg whether — someday, after Trump’s presidency — to try a second time to prosecute the then going-on-83-year-old, two-term former president on this dog’s breakfast of a case.)

As I’ve explained before, Trump’s posttrial motion is colorable. In fact, I believe he should prevail: Knowing the risk involved, Bragg introduced, with Merchan’s indulgence, presidential-act evidence that should have been suppressed under the principles subsequently outlined in the Supreme Court’s immunity ruling. Bragg, moreover, is not well positioned to argue that this evidence was harmless because, in summation, his prosecutors told the jury it was “devastating.” If I were the judge, I’d vacate the guilty verdicts and tell Bragg that, if he wants to retry Trump, he’ll have to do it after January 20, 2029, and without any official-acts evidence.

But that’s what I would do, not what Merchan would do.

In the letter to Merchan filed this morning, Bragg indicated that his office intends to vigorously oppose Trump’s motion. Undoubtedly, prosecutors will argue that the admission of the evidence was harmless and even that the conduct and charges at issue involved private, nonimmune acts, even though these acts took place during Trump’s presidency. I would not find these contentions convincing, but Merchan — an activist Democrat who contributed to campaigns against Trump, and whose daughter makes a lucrative living as a progressive campaign operative (for the likes of Kamala Harris and Adam Schiff) — has ruled Bragg’s way on every important issue in the case. It would be naïve to believe that is going to change now, when to do so Merchan himself would have to concede error (something he has shown no inclination to do even when his errors have been patent).

Reading between the lines of the DA’s letter — which, in an unusual move, Bragg personally signed — two things emerge. First, Bragg intends to fight hard to try to preserve the guilty verdicts and feels that he’s in a good position to do that. Second, Bragg knows that (a) he’s on thin ice if matters extend beyond January 20, when Trump will be inaugurated and proceedings in the case should be suspended under the Constitution’s supremacy clause, and that (b) Trump is pushing hard to have proceedings — that is, sentencing and the formal entry of the judgment of conviction — suspended at least until after the motion to vacate the guilty verdicts is fully litigated, and beyond that if necessary.

On the latter point, Bragg writes:

Given the need to balance competing constitutional interests, consideration must be given to various non-dismissal options that may address any concerns raised by the pendency of a post-trial criminal proceeding during the presidency, such as deferral of all remaining criminal proceedings until after the end of Defendant’s upcoming presidential term. [Emphasis added.]

Bragg knows, it seems to me, that if Trump thinks he’s going to lose the posttrial motion to vacate, he will leap at the chance to suspend the case for four years. Bragg is signaling that if Trump asks for that outcome, Bragg will not fight him on it. What he won’t agree to is dismissing the case.

Hence, I believe Bragg wants a strong signal from Merchan that, if Trump’s posttrial motion is litigated at this point, Merchan will deny it and proceed promptly, before Inauguration Day, to sentencing and the entry of a judgment of conviction. If Trump and his lawyers believe that this is the way the wind is blowing, they may well ask Merchan not to rule on the posttrial motion at this point but rather to stay consideration of it — i.e., to let it be suspended with everything else while Trump is president for the next four years.

Two final thoughts.

First, as noted above, Team Trump is already taking a victory lap today as if the mere postponement of sentencing without the setting of any new sentencing date is a major achievement. The president-elect and his lawyers (the two principal ones, Todd Blanche and Emil Bove, are slated to take top positions in Trump’s Justice Department) are trying to shape the public’s understanding so that the American people, too, see a suspension of the proceedings as a big win for the president-elect. They are doing that because Trump doesn’t want to be under a sentence and have a criminal record while he is president, so a suspension — rather than ultimate vindication on appeal — is their priority.

Second, for those asking why Bragg is doggedly pursuing lawfare when it’s been so counterproductive for Democrats, the answer is that Democrats are not a monolith. National Democrats realize that lawfare hurt the Harris campaign, but Manhattan Democrats know lawfare helped Bragg.

Harris beat Trump by more than 60 percentage points in Manhattan. While campaigning for DA, a political office subject to popular election, Bragg signaled to Manhattanites that he would use the powers of his office against Trump. He has made good on that commitment, and voters have noticed. As the New York Post reported just two days ago, Bragg is heavily favored to win reelection next year. Trump made inroads in New York this year, but that was in the outer boroughs and upstate; in Manhattan, the president-elect is deeply unpopular, and the public does not see Bragg’s case as the farce it appears to be to much of the national electorate.

Ergo, Bragg is not letting the case go, and he doesn’t need Trump to be sentenced. As far as the DA and his political base are concerned, Bragg won the trial, and that’s what matters. He is not worried about the appeal. The point of bringing the prosecution was to damage Trump as a 2024 presidential candidate; even if the case is reversed on appeal, such a reversal won’t happen for years — by which point Bragg could be looking to run for higher office.

Sentencing and the judgment of conviction are important to Trump, not to Bragg. The DA has assessed that the president-elect, if it’s his best option, will ask for a four-year postponement. I don’t agree with Bragg about much, but I agree with him on that.