There’s No Irreparable Injury Here.

The Supreme Court should deny Trump’s stay motion, but that doesn’t mean it will.

Source: Montage made with photo from Windover Way Photography / Shutterstock

Most of my Substack entries are more considered takes on recent news, but on occasion, I will serve up a hot take on an important issue where I think you’ll be looking for an immediate analysis of what’s happening and where things are trending. Trump’s brief to the Supreme Court, trying to keep the Merchan sentencing for his New York convictions from going forward on Friday, fits that bill. So here are some immediate thoughts about what I think is going on in the brief that Trump filed this morning and where I think it may be headed.

I’m scheduled to do a couple of cable hits on the motion later today, but I wanted my awesome Substack subscribers to have first dibs on my thoughts! The Substack is still a baby—it’s been going for just six weeks—and your support has been so much greater than I could have anticipated. I’m very grateful.

Bottom line: The Court should deny Trump’s last-ditch effort, but the brief gives the Court the building blocks to save the day for him, as they’ve done in the past. How the stay motion comes out will depend on the Court’s reading of its own expansive opinion in the Trump v. United States immunity case.

The cornerstone of Trump’s argument is that allowing the Merchan sentencing to go forward on Friday would violate that case. And as we know too well, a claim of immunity generally entitles the defendant to an immediate interlocutory appeal. As the Court wrote in Trump: “[t]he essence of immunity is its possessor’s entitlement not to have to answer for his conduct in court.” That is because even if he were exonerated, “the possibility of an extended proceeding alone may render [him] ‘unduly cautious in the discharge of his official duties.’”

Along with the abominable decision it eventually spawned, the automatic-stay aspect of immunity is what truly enabled Trump to defeat the January 6 prosecution, notwithstanding Judge Chutkan’s diligence and eagerness to move the case forward. For almost any other claim, Trump would have needed to await the end of the trial and bring it up on appeal. Immunity is special because it confers a right not to face trial in the first place. That’s why the Court was able to hijack the case before it even started and keep it for many long months.

In fact, the classic statement of the appealability of immunity decisions, which Trump refers to over a dozen times, is that it is “automatic.” The Court reiterated that point in the immunity case. That sets up Trump to present the need for a stay as an apparent syllogism: “[t]his Court’s holding and reasoning, and Trump, resoundingly confirm… that a stay is mandated. Trump explicitly holds that a claim of presidential immunity is subject to interlocutory appeal before further criminal proceedings may occur.”

When the district attorney files its answer, it can point to the very few instances where courts have not granted immediate stays because the immunity claim was so weak. Here, the immunity claim is pretty damn weak—as Merchan held, Trump’s crimes concerned unofficial conduct, the core of which took place before he became president. But we can’t count on the Court to reject the stay for that reason without even reaching the merits. It has too often cited the automatic stay principle—including in the Trump case itself. Plus, because they have recently made up the whole presidential immunity area, almost any claim can be presented as at least unsettled.

But there’s a much stronger basis for rejecting the stay. The key is that Trump’s brief relies on the most expansive aspect of the Court’s wildly expansive opinion: the holding that the principle precludes not just the trial of immune conduct but even the introduction into evidence of such conduct in a criminal prosecution of the president.

It is that aspect of the Trump v. United States case, rather than some broader immunity principle, that is the linchpin of Trump’s current argument in the Supreme Court. The core of the argument is that Merchan wrongly admitted evidence of immune official acts. For example, the jury heard about a conversation that Trump had as President in the Oval Office with Hope Hicks, his then-communications director, when she told him that The Wall Street Journal was about to publish the Stormy Daniels story. Or it heard various statements he made as President. This conduct, as opposed to the core of the case, at least has some plausibility as immune, even if the better view is that it too concerns unofficial conduct. And Trump argues—it’s the heart of his claim, in fact—that because it concerns immunity, he has a right to have it heard immediately, effectively preempting the sentencing.

Of course, all the parties understand that Trump’s game is to put off the sentencing for the 10 days before his inauguration. At that point, a separate principle would preclude any aspect of any criminal prosecution of a sitting president. Since sentencing is the point at which a conviction actually occurs, he thus would have escaped conviction in the New York case, just as he has in all the other cases. All of them started and ended before he was convicted. So if you conclude, as I argued in yesterday’s Substack, that we have a deep interest in securing the accurate verdict of history, the stakes of this last-minute maneuver are immense.

Securing History's Verdict

The reason the Court should reject Trump’s claim is that the automatic appealability principle should not apply where the defendant is objecting to the introduction of evidence in a completed trial. For starters, discussions of immunity emphasize the need to shield the defendant from “extended proceedings and the great burden of trial.” As the Court wrote in Trump: “[e]ven if the president were automatically not found liable for certain official actions, the possibility of an extended proceeding alone may render [him] ‘unduly cautious in the discharge of his official duties.’” Here, of course, we’re not talking about extended proceedings, but a half-hour or so during which Trump would get a stern lecture from Merchan followed by the imposition of an unconditional discharge—the practical equivalent of no sentence at all.

But there’s an even cleaner reason challenges to the introduction of evidence of immune conduct should not give rise to an immediate stay. Again, the “essence” of immunity is a right not to have to go to court in the first place. That principle doesn’t work for a claim that the trial court improperly admitted an item of evidence. Unlike a prospective trial, any harm has already occurred; it doesn’t make sense to provide a stay to keep the harm from happening.

Assume that Trump were right that the Hope Hicks conversation never should have been admitted. The court of appeals can say so and, if it disagrees with Merchan that any error was harmless, reverse the convictions when it considers all his other claims on appeal. (I should say if it considers his other claims because if the sentencing doesn’t take place—and even if it does—we are in such an Alice-in-Wonderland posture that the case may evaporate anyway.) None of that has anything to do with the pronouncement of sentence, which follows as a matter of course now that Trump has been convicted.

Consider this point in terms of the factor of “irreparable injury,” one of the key factors that Trump has to establish to secure a stay. There isn’t any. That’s because any injury is easily repaired the same way as any erroneous admission of evidence: the defendant appeals, and the court of appeals reverses, ordering a new trial if that remedy is appropriate.

This analysis would be straightforward in the case of any other defendant, even one claiming immunity. An objection to the improper admission of evidence is very different from an objection to holding a trial in the first place. A jury shouldn’t hear evidence of, for example, improperly seized property or a coerced confession, either of which would violate express constitutional provisions; but once it has, the system has a ready remedy. And if the system has a remedy in any other case, it has one here.

Second, Trump’s argument here is really another effort to enlarge the concept of presidential immunity to include a president-elect. But as I’ve argued before—and as should be completely apparent to the Court—the line between a president and a president-elect is impermeable, for important constitutional reasons. We only have one president at a time, and that fact is essential to any serious notion of executive power.

A corollary of this analysis is that the Court compounded the profound errors of its opinion in Trump v. United States with the unnecessary and poorly reasoned tacking on of the "no evidence of immune conduct" principle. Even if we were to accept the wisdom of the core of the opinion, the afterthought of barring evidence exacts a cost to the criminal justice and jury systems that the concept of immunity itself cannot justify. Instead, the system is already equipped to handle any problem through curative instructions or appellate review. Justice Barrett was right to part company with the rest of the Court on that point.

Perhaps recognizing this key flaw at the heart of his argument, Trump tries to manufacture a new sort of injury that applies to presidents only: namely, the “public stigma and opprobrium,” which, he posits, could compromise his ability to carry out his constitutionally assigned functions.

When I read this, my immediate, unpleasant thought was: that’s just the kind of drivel that the pro-immunity contingent of the Court could embrace. But it shouldn’t. The first response is: if the conviction fits, wear it. The opprobrium or stigma would’ve been just as great if the conviction—or any conviction—had occurred a year ago. In other words, it’s a function of facts in the world, not a constitutional violation by the courts of New York. Relatedly, the stigma already attaches by virtue of the jury’s decision after a long trial (which I attended, and at which the evidence was overwhelming). It is Trump who is now trying to leverage his coming tenure to erase it.

So how should the Court handle Trump’s request for a stay and his desperate effort to take Friday’s sentencing off the calendar?

It should deny relief by concluding that Trump has failed to establish irreparable injury, as a stay requires. That wouldn’t prevent Trump from bringing the precise claim on appeal after conviction. But there is no real connection between Friday’s scheduled sentencing and his immunity arguments, so there is no justification for the convulsive disruption that Trump is insisting on.

What would defeat that analysis is a wooden reading of the immunity opinion that fails to grasp the distinction between the body of the holding and the particularly unwise appendage that the Court grafted onto it. There was a day when we might have predicted with confidence that the Court wouldn’t bend so far in that direction, much less insert itself so forcefully in the political fray, particularly at the last moment. That day ended, some would say, 24 years ago. Today, the possibility of another high court overreach is coming at us like a freight train.

Talk to you later.