Adam—Update on the Trump hush-money case in NY.
Yesterday, Judge Merchan rejected Trump’s immunity arguments and set sentencing for January 10. He issued an 18-page order, which I’ve highlighted for you and attached.
**I’d say the lede is that Judge Merchan declares his intention to impose a sentence of “unconditional discharge”** **rather than incarceration.** An unconditional discharge is essentially a sentence of “no punishment.” As in, “You have a conviction now, but we’re done. You don’t have to pay a fine, do time or community service, or even go through probation. Go home.” I expect that Judge Merchan will honor this statement (although who knows—he may change his mind if Trump badmouths him again). The interesting part about this is that unconditional discharge is usually reserved for crimes that aren’t serious. By issuing this sentence, Judge Merchan will arguably declare Trump’s crime to be nonserious.
But there’s lots more to unpack. I think bullets are the best way to address them:
- **About Judge Merchan:** Judge Merchan does not like Trump, and Trump has made no bones about it. Among other things, the New York State Commission on Judicial Ethics sent Judge Merchan a letter of caution after he made small (but clearly prohibited) political contributions through ActBlue—including donations to “Biden for President” and “Stop Republicans.” Despite this, the Commission didn’t find that these contributions created the impression of bias or favoritism.
I raise this point only because it colors all of Judge Merchan’s decisions. (This is why the ethics rules strive to avoid even the _appearance_ of impropriety, because even the appearance of propriety undermines public faith in the judiciary.)
- **Brief history:** I’ve chronicled this case’s long and torturous path in my previous emails below. But here’s a quick summary: Trump was convicted in May. In July, SCOTUS issued the immunity decision. Then came Judge Merchan’s order pausing the case until after the election. In November, Judge Merchan halted the case again to figure out how to proceed. Both Trump and the prosecution agreed that the case can’t proceed while Trump is in office, but they disagreed whether the case should be dismissed. Trump was allowed to file a motion to dismiss. Meanwhile, Judge Merchan kept the sentencing phase on ice.
- **The motion and the parties’ positions:** Trump has raised two theories of immunity: (1) immunity from _liability_, which says the defendant can never be _convicted_ of the alleged conduct, and (2) immunity from _prosecution_, which says that, guilty or not, the defendant can't be the subject of criminal _process_—and thus can’t be tried or even indicted. He also raised what’s called a “_Clayton_ motion”—a kind of catch-all motion that asks the court to dismiss the case “in the interests of justice” (a loose standard).
The prosecution opposed outright dismissal. But here’s where it gets interesting: Instead of dismissal with prejudice, the prosecution proposed two alternatives. First, they proposed putting the case on ice until 2029 when Trump gets out of office. Second, they proposed using a device called the “Alabama Rule.” Under that rule, the case would be frozen in Limbo forever—without a dismissal and without a sentence.
- **Judge Merchan’s order:** Both sides agreed that sentencing shouldn’t go forward, but Judge Merchan disagrees. Here are the main points in the order (let me know if you have any questions about any of this):
- Judge Merchan finds that immunity from prosecution doesn’t apply to a President-Elect. Thus no impediment to proceeding to the sentencing phase before Trump takes office.
- Judge Merchan tacitly rejects any contention that Trump is immune from _liability_ either. The order is a little muddled on this point, but basically he’s saying that the conduct happened before Trump took office, so it isn’t shielded by immunity. That seems correct.
- Surprising no one, he rejects Trump’s _Clayton_ motion asking to dismiss the case in the interests of justice. He runs through the relevant factors—and along the way, he takes aim at Trump’s character. That is appropriate, but it certainly opens a window into Judge Merchan’s state of mind. Anyway, the _Clayton_ motion was DOA; Trump was just preserving arguments for appeal.
- Judge Merchan rejects the prosecution’s proposal that the case be stayed permanently under the Alabama Rule because it would deprive Trump of his appeal rights. (I detect crocodile tears, LOL.) He also rejects the prosecution’s other proposal that the case be stayed until 2029 because “it is less desirable than imposing sentence prior to January 20.” He adds that “The reasons are obvious”—but for what it’s worth, it doesn’t seem obvious to me. Seems more like a tell.
- He says that he’s not inclined to impose a sentence of incarceration, but rather unconditional discharge.
- He points out that this case presents “an unprecedented, and likely never to be repeated legal scenario.” This is not a throwaway statement. When a party seeks review from SCOTUS or a state high court, one of the factors is whether the issue will arise frequently. If it’s truly a one-and-done situation, high courts are less likely to accept the case. It’s certainly not the only factor, but it’s interesting that Judge Merchan felt the need to say this.
- Trump can appear at sentencing either in person or virtually.
- **Next steps:** There are a lot of ways this thing can go. Last time I checked, Trump was trying to “remove” the case to federal court, where he might have better luck on the immunity issues. I’m not sure about the status of those attempts, but obviously they haven’t yet succeeded. Barring removal, Trump could seek an immediate appeal of Judge Merchan’s final judgment. I would expect them also to seek a stay of that judgment (and whatever sentence it carries), keeping it from being effective. Getting a stay is a crap shoot—I’m sure Judge Merchan won’t give one, and the appellate courts tend to defer to the trial judge. Alternatively, Trump could attempt to get a writ of mandamus ordering Judge Merchan to stand down and suspend or vacate his order, but that seems unlikely unless Trump can articulate some form of harm that can’t be fixed on appeal. Whatever the path, you can be sure there will be some twists that you and I don’t see!