Spoiling Trump’s Party

Despite his many triumphs over the legal system, it is finding ways of pushing back. And that has Trump steamed.

Photo: Alex Brandon / AP

With a huge assist from his three Supreme Court appointees and a federal judge in his pocket in Florida, Trump has managed to delay legal proceedings, be handed broad immunity and avoid most accountability by winning reelection. For defenders of the rule of law, this has been a series of gut punches, coupled with a foreboding sense that, with the courts themselves captive, we are slipping toward autocratic rule.

You would think with all his legal victories and political triumph, Trump would be a happy camper. But judging from his online rants, he is still fuming mad at our legal system and has earned little personal peace from any of this.

While he likely won’t ever see the inside of a prison cell, the battle has shifted to how history will record Donald Trump. And our legal system still manages to send him into online fits of rage.

Specifically, Trump faces a judge in Manhattan who has refused to postpone his sentencing date of January 10 and a special prosecutor who, though forced to close his cases against Trump, has penned a two-volume report that might soon get released to the public.

All this legal rain could dampen Trump’s spirits considerably.

Trump, the Convicted Felon

Before I dive into Judge Merchan’s rulings, let’s take a quick legal detour.

There’s a discussion happening among legal experts over exactly when you’re considered a convicted felon under New York law, a question of direct importance when it comes to Trump. Some say it happens upon rendering the guilty jury verdict, while others insist it only happens after sentencing, while still others argue it’s only after all appeals have been exhausted.

I’ve read the arguments and I tend to agree with those who say it’s upon a guilty verdict by a jury, based on New York case law—People v. Montilla, 891 N.E.2d 1175 (2008), for those who are curious—in which the New York Court of Appeals (the highest court in the state) stated rather clearly,

“[w]hatever may have been the rule previously, the [Criminal Procedure Law] provide[d] that a conviction occurs upon a verdict of guilty”…. Criminal Procedure Law § 1.20 (13) thus embodies the Legislature’s decision to give the term “conviction” a definitive meaning so that the confusion reigning under prior law might be ‘laid to rest.’”

Still, there is some wiggle room here, for reasons too long to get into, and MAGA loyalists still want to claim their guy isn’t really a felon until Judge Merchan says he is formally. It is with this backdrop in mind that I considered his most recent decisions.

Judge Merchan’s rulings

Defying enormous pressures, including threats upon his family, Judge Juan Merchan recently denied Trump’s motions to overturn the verdict and has now scheduled sentencing for January 10.

This has sent Trump into an apoplexy online.

Just take a look at his most recent post about Judge Merchan and the case against Trump in Manhattan, in which he once again railed against the gag order and even called for the judge to be disbarred. I believe the official term for this is a “meltdown.”

Perhaps Trump is angry that the judge merely did what Trump had asked him to. As Judge Merchan wrote,

“[T]he record is clear that Defendant not only consented to, but in fact requested the very adjournment that led us down the path we are on. As the parties are aware, it was on Defendant’s application, without opposition from the People, that sentence was adjourned until after the Presidential election. Any claim Defendant may have that circumstances have changed as a result of Defendant’s victory in the Presidential election, while convenient, is disingenuous.”

He’s probably doubly mad that Judge Merchan refused to delay the sentencing, despite a last minute motion by Trump’s lawyers. “This Court has considered Defendant’s arguments in support of his motion and finds that they are for the most part, a repetition of the arguments he has raised numerous times in the past,” Merchan wrote in a two-page decision.

But wait a sec. Judge Merchan indicated in his longer ruling that he’s not inclined to impose any penalty at all at Trump’s sentencing. Instead, he’s planning on letting Trump off with something called “unconditional discharge,” which means no custody, no financial penalty (which would have been tiny for Trump anyway), and no probation or supervision.

Critics howled. I personally winced and took a breath. After all, this wouldn’t even be a slap on the wrist. It would be the judge simply waving his hand over Trump’s wrist and saying, “Donald Trump, you are now a convicted felon.”

So what gives? Why would Merchan let Trump off so easy?

I put myself in Merchan’s position and concluded that the hard truth is, he had almost no options here if he wanted to preserve the jury’s verdict at all.

For starters, there was zero chance any court would allow the judge to send Trump to prison just as he was about to assume office. There was also very little chance they would let a prison sentence be put on hold for the next four years, as that also would occupy and distract the president from his role. Same goes for a probation with conditions that could hang over the entire presidency.

Merchan also knew Trump’s appeals could last years. And that’s what made his proposed symbolic sentence rather clever: The lack of any actual punishment, except the ignominy of being sentenced as a convicted felon, means Trump’s best arguments on appeal are now severely undercut.

Here’s Joyce Vance again, wisely talking us down from the ledge and explaining why Judge Merchan’s ruling, which sought above all to preserve the jury verdict, actually hinders Trump’s best arguments on appeal:

Trump will have no further obligations to the court. He won’t be able to argue the proceedings interfere with his transition—the Judge is even letting him appear remotely, and it’s going to be tough for the man who was on the golf course while the vote for speaker was taking place to say he can’t set aside 30 minutes to hop onto a Zoom hearing. With no jail time, no fine, no supervision by probation looming over him, there is nothing to interfere with Trump’s preparation to take office. And it would be difficult to articulate any unique harm from the sentencing. Trump has, after all, already been convicted and reelected despite that fact. Legally, Trump would have to convince an appellate court that he would be irreparably harmed if he is sentenced on the 10th to justify putting it off. Judge Merchan has left him without much to work with.

There are many things that accompany a formal felony conviction (even if serving as president amazingly isn’t one of them). Trump will have to get special allowances from many other countries to travel to them. He may not be allowed to vote. His businesses may come under special rules, including liquor license restrictions.

But getting Trump’s conviction formalized and into the record also matters because of another weird quirk that could up-end things down the road. As Vance noted, if a defendant dies while his case is on appeal, the conviction is vacated. That means if Trump’s sentencing were delayed until after his presidency was over, there is a high likelihood that he wouldn’t live long enough to see all his appeals exhausted, and the conviction would then disappear. For Judge Merchan, it’s critical to get the sentence in soon and the clock started on Trump’s time to appeal, meaning 30 days from the date of the sentence.

We’ll have to see if Trump manages to delay sentencing anyway. That’s still what his lawyers are gunning for. On Monday, they filed a lawsuit in the appellate division against both District Attorney Alvin Bragg and Judge Merchan—called an Article 78 motion—to try and block the sentencing, arguing that Judge Merchan exceeded his jurisdiction when he denied Trump’s claim of presidential immunity.

Whatever our own feelings and frustrations are over the leniency of the sentencing, we already know Trump absolutely hates the idea that he could actually be sentenced at all. And that’s because of the scarlet F that will hang forever around his neck if it happens.

Blocking Smith’s report

By winning reelection, Trump forced the Department of Justice to close its cases against him, per its policy not to prosecute a sitting president. But Smith has also compiled a two-volume report detailing Trump’s conspiracies to overturn the 2020 election and his illegal transfer and possession of classified documents.

As with the sentencing Trump is so eager to avoid, Smith’s report is something Trump and his lawyers are trying very hard to suppress.

DoJ regulations are clear. Special counsels are required to file a report with the attorney general explaining why they filed the charges they did, as well as their reasons not to file any other charges. The most recent (and infamous) example of this was the Mueller Report, which found there was insufficient evidence to charge electoral collusion between the Trump campaign and the Russians in 2016, but made no decision with respect to obstruction charges. Attorney General Bill Barr cynically withheld that report and spun it into something it was not, primarily through a misleading “summary” that the press simply believed and reprinted, then summarily decided not to pursue obstruction charges.

Here, Attorney General Merrick Garland will soon decide whether to release Jack Smith’s voluminous report to the public. It is apparently ready and under review. We don’t know how he will decide, but in anticipation Trump’s lawyers have written Garland a nastygram demanding that he not release it.

“The release of any confidential report prepared by this out-of-control private citizen unconstitutionally posing as a prosecutor would be nothing more than a lawless political stunt, designed to politically harm President Trump,” Trump’s lawyers wrote.

They further claim it would disrupt the presidential transition by “giving rise to a media storm of false and unfair criticism” and interfere with presidential immunity by diverting Trump’s time and energy.

They specifically objected to its claim that Trump and others “engaged in an unprecedented criminal effort,” that Trump was “the head of the criminal conspiracies,” that he hatched a “criminal design,” and that he “violated multiple federal criminal laws.” They also alleged that it contains “baseless attacks on other anticipated members of President Trump’s incoming administration, which are an obvious effort to interfere with upcoming confirmation hearings.”

This seems like the entirely wrong approach with someone like Garland, who operates—many argue often to a fault—strictly within the rules and without regard to political pressure. Trump’s lawyers likely know this and really wrote the letter for consumption by the MAGA base. They’re preparing the ground so that they can attack Garland later should he decide to release Smith’s report.

Separately, lawyers for Trump’s two co-defendants in the Mar-a-Lago documents case have filed papers with Judge Aileen Cannon to block the report’s release. They asked her to issue an emergency order barring Smith from making the report public until their clients’ cases have reached a “final judgment” and “all appellate proceedings are concluded”—in other words, years and years from now.

But there’s an awkward problem with this approach. Judge Cannon, in her eagerness to prove her fealty to Trump, dismissed the case against Trump entirely by ruling that Jack Smith was not properly and legally appointed as a special counsel. That outrageous ruling was on appeal but got dropped with respect to Trump after he won the election, again per DoJ guidelines.

Ironically, this now means that Judge Cannon no longer has any jurisdiction over Smith and can’t really force him to withhold the report. Whoops.

Judge Cannon of course has never been a stickler for things like jurisdiction and limitations upon her authority, so we’ll have to see how this plays out.

[Update: Per the NYT: “The federal judge who handled President-elect Donald J. Trump’s classified documents case temporarily barred the special counsel, Jack Smith, on Tuesday from releasing his final report on the investigation to the public. In a brief ruling, Judge Aileen M. Cannon, a Trump appointee who dismissed the documents case in its entirety this summer, enjoined Mr. Smith from sharing his report outside the Justice Department until a federal appeals court in Atlanta, which is now considering a challenge to her dismissal of the case, makes a decision about how to handle the report.”]

But if Smith’s report comes out anyway, Trump’s inauguration could be overshadowed by its many details while the 2020 election gets relitigated in the press.

This could all be happening while historians note the significance of an official criminal conviction of Trump and flags fly at half mast for President Jimmy Carter. So instead of a sunny and bright celebration on January 20, there could yet be many legal clouds still hovering over Trump’s inauguration.

No wonder he is furious.