Trump's Brazen Fight to Erase His Convictions

Editorial credit: Steve Sanchez Photos / Shutterstock.com

In a significant filing that reshapes the debate over Trump’s 34 felony convictions in New York, DA Alvin Bragg on Tuesday served up to Justice Juan Merchan a menu of options for preserving Trump’s convictions while still accommodating the constitutional interests that Trump insists dictate complete erasure of the case.

Bragg’s measured and temperate 81-page argument acknowledges the weighty factors favoring closing up shop. These include the impalpable effects on the office from the stigma of criminal proceedings as well as the practical challenges of attending to a criminal prosecution while in office. (Those practical challenges, as Bragg pointed out, are much reduced here since the trial is completed and the actual sentencing will take up little time.)

Counterbalancing these considerations, however, Bragg emphasized the substantial public costs to “legitimate governmental objectives” of vacating the convictions. Most importantly, Bragg argued that granting Trump’s motion would undermine public confidence in the criminal justice system.

Merchan already has shown some sensitivity to the historical dilemma posed by Trump’s re-election, including by permitting this wide-ranging motion to be filed before he decided on sentencing. Bragg’s argument, and its array of alternatives for the court, gave Merchan room to maneuver without unraveling the entire prosecution and jury verdict.

First, Bragg suggested that Merchan could go ahead and impose sentence before January 20. Appeals of that sentence, or any further proceedings in the case, would then be held in abeyance until the end of Trump’s tenure, at which point they would simply pick up where they left off. Bragg analogized to cases in New York that drag on for many years after sentencing, for example, because a defendant has escaped.

This course of action would come closest to the outcome that Trump antagonists have thirsted for: an actual announcement of sentence that would remain in some sense on the books and in the historical record, even though it might not be executed for years, if ever.

Second, if Merchan does not impose sentence before January 20, Bragg suggested that the entire case, sentencing included, could go on ice until after the end of Trump’s presidency. Merchan pointed out that while courts are required to pronounce sentence without unreasonable delay, legally excusable delay counts as reasonable; and it’s hard to imagine a more excusable delay than the ascent of the defendant to the presidency.

Moreover, it’s Trump who is insisting on suspending the imposition of sentence while he serves, and delay caused by the defendant's own motions is per se reasonable. And of course, to the extent delay is required by constitutional protections of the official functions of the presidency, it necessarily would be permissible.

Bragg’s third, most innovative option invokes the “abatement doctrine,” typically applied when a defendant dies after a jury verdict. In most states (though not New York), the conviction remains on record even if the defendant dies before the appeals process is complete. A common practice is to note in the record that the defendant was convicted and that the presumption of innocence was therefore removed.

Bragg suggests Merchan could adopt a similar approach, recording that Trump was convicted but not sentenced, with the conviction neither affirmed nor reversed on appeal due to presidential immunity. Merchan thus could bring the case to closure, removing the sword of Damocles hanging over Trump’s head. At the same time, however, he would formalize Trump’s convictions for the legal record.

These options, especially the third, are likely to infuriate Trump. When Trump filed his motion last week, it largely went unnoticed that he was seeking a comprehensive victory: not just a reversal of his convictions but a complete erasure of the case from the historical record. He argued that just continuing the case through sentencing would have an unconstitutional impact on the office of the presidency.

Trump’s argument relies heavily on the controversial memorandum from the DOJ Office of Legal Counsel (OLC), which concludes that the Constitution bars the indictment and criminal prosecution of a sitting president. The conclusion, binding on the executive branch, does not turn on the distinction between official and unofficial conduct. It’s a straightforward categorical bar against “indicting or prosecuting a current president."

Trump seeks to expand the OLC principle in two ways. First, he argues it applies to a president-elect, citing stray statements in cases as well as the Presidential Transition Act pronouncements and laws governing presidential transitions to emphasize their importance. But the line in the OLC opinion, not to mention the Supreme Court’s immunity opinion and common sense, is clean: one person is exercising the executive power of the United States at a time, and that person right now is Joe Biden. The special considerations that Trump is trying to invoke can’t be stretched to fit a president in waiting. He remains for now a private citizen.

Second, Trump argues that institutional considerations require the case to be permanently dismissed. But again, the OLC memo is clear in its analysis of what it specifies is “temporary immunity” during the pendency of the presidency. Indeed, part of its analysis is to explain why the immunity from prosecution principle it endorses doesn’t foreclose eventual criminal accountability of the President.

All of these legal arguments and appeals to analogy have to be taken as fluid in light of what Bragg, Merchan, and the entire legal system recognize as the “unprecedented circumstances” of the election of a convict to the presidency. Bragg’s motion gives Merchan ample room to impose sentence now, which would leave Trump and MAGA nation apoplectic. But he can also hold off, and if he does so until January 20, the much more muscular principles that apply to a sitting president will kick in.

The stakes of Merchan’s imminent decision are great. Their import is not practical – the odds that Trump would ever serve any real sentence plummeted to near zero on November 5. But the president-elect wants to leverage that victory to make his 34 convictions evaporate and leave history’s account of his conduct blank. Merchan is the principal obstacle left standing between Trump and that audacious goal.

The filing from Bragg was part of a busy week in the New York case. Monday, the Supreme Court closed the door on Trump’s long efforts to reverse the gag order that Justice Juan Merchan originally imposed at trial, but re-upped in limited fashion after the convictions. Supreme Court denials of review rarely have any significance, but this is one that I think matters.

The current gag order is a narrowed version of the one Merchan first imposed in response to Trump’s incorrigible ranting during the trial in ways that threatened the integrity of the proceedings and the safety of staff and their family.

Trump opposed both the original and revised orders. He tried to suggest that they posed some deep infringement of his First Amendment rights–that somehow insulting the judge and the other specific acts that were barred by the gag order were down-the-middle political speech and central to his campaign.

As much as the Trump team tried to reframe the order according to First Amendment principles (as if the state was simply telling Trump here’s what you can and can’t talk about), there is actually an entirely different legal framework when it comes to the power of the state or federal government to assure the integrity of legal proceedings. Defendants are barred from talking trash about attorneys or jurors, not because of some First Amendment limitation, but because of the entirely separate interest of protecting the legal process itself.

Since that was the reasoning when the gag order was first put in place, you may think that it would simply be lifted once the trial ends. But Merchan said no. There are still a number of things that could happen in this case, including the motion to make the whole thing go away on immunity principles (see above).

So instead of lifting the order, Merchan decided to keep it in place but reform it by removing elements that were no longer relevant. As revised, the order instructed Trump not to harass individual spouses or court employees or make comments that could prejudice the jury pool in the event of future proceedings. That’s a straightforward exercise of Merchan’s discretion to safeguard the case, and it was the basis for the rejection of his arguments. The Supreme Court’s denial of review means Trump’s effort to overcome that order and its underlying reasoning have been definitively beaten back.

And what that development establishes is that the system as a whole approves of the notion that President Elect Trump remains in the clutches of the New York criminal justice system. So for example, if Merchan were to impose some kind of probation based on the convictions here or restrictions on Trump’s travel, those orders would be legitimate so long as Merchan considers them important to ensuring the integrity of the trial process. Likewise, if Trump violates the gag order and Merchan imposes penalties in response.

Now of course, Trump’s omnibus challenge to the whole case, which Bragg responded to Tuesday, could potentially result in eliminating the order, because if Merchan loses jurisdiction over the case, the basis for the order goes away. But failing that, what we’ve learned from Monday’s (albeit, non-precedential) order and the general failure of Trump’s motion leading up to it is that, president or not, Trump has been convicted and remains in some ways within the New York trial level court’s control.

So the gag order remains and as long as it does, like anyone else who has been convicted, Trump must come to grips with some impingement on his liberty by the court that is overseeing his ongoing action.

Talk to you later.

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